Hi! Collin Williams here with New Era’s origin story.
The first question I am often asked about New Era ADR is “what inspired you to do this?”
In other words, what did you find to be broken about the current system?
It turns out our origin story not only explains the genesis of a business, but also explores macroscopic questions about the litigation process and how the current infrastructure has allowed for exploitation and even encourages inefficiency.
But first, let me take you back to my law school days.
I always envisioned being a litigator. In my naive opinion, litigating was simply what attorneys did. On TV, attorneys were in the courtroom. They defended their clients, argued their cases and accepted outcomes from decisive judges. I was completely unaware of the incredibly diverse and wide-ranging spectrum of legal practices with the profession. Yet, even when I became more aware, I was still laser focused on a career in litigation. I wanted to be an advocate in court, telling client stories and winning cases. I wanted to hone my craft in the courtroom and be a part of the action. So when I graduated, I enthusiastically and willingly pursued litigation roles.
Perception vs reality in litigation was stark, almost immediately. Even the most grizzled trial attorneys I worked with rarely went to court to handle dispositive motions or trials. Process and procedure were rampant, substantive hearings were not. I reviewed a lot of documents. A LOT of documents. And then more documents. Still, I persisted and by my seventh year of practice, I had some substantial substantive experience and had begun to develop my own book of clients.
At the start of my eighth year, I had a long-time family friend come to me for assistance. He had been in a 14 year relationship with his business partner. The operative documents dictated that everything was 50/50 and needed the approval of both partners. Despite 14 years of working together, they were involved in a very acrimonious dispute and wanted to dissolve the company. Unfortunately, because of the 50/50 nature of the relationship, they could not agree on the logistics of doing so. Enter me, The Litigator! I suggested to my client that this probably was not the best avenue of redress given the time, cost and expense, but since neither partner could agree on anything, there didn’t seem to be a logical alternative. So I took on the case.
After three years of litigation, we had yet to even make it to the discovery phase. At that point, I received an offer to go in-house and decided to leave my firm. But this particular case was still in its relative infancy, so I passed the file onto my colleague knowing he was extremely ethical, would honor my billing rate discounts and would push to get the case to a decision as quickly as possible.
Years later, I received a call from my former client. After an additional three years of litigation, the case was on the eve of trial when it settled for a relatively nominal amount. My former client was ecstatic that, at a minimum, he would be relieved of the mental strain and bandwidth associated with the litigation. At the same time, however, he asked me to guess what amount he had spent in legal fees over this six year period. I cringed.
The client spent more than seven figures in legal fees across six years of litigation, only to end up settling for a fraction of that amount immediately before trial.
I was stunned and apologetic, however, he did not blame me or any of the attorneys who handled his case along the way. In fact, he was hardly upset about the pecuniary loss and his next remarks are forever seared into my brain. He told me his greatest irritation about the matter was not the money, but the process. To paraphrase, “my main issue is that we have a justice system that seems to be based on two parties telling their story and being judged. But at no point in the six years of this case, did I ever get the opportunity to stand in front of the judge and tell my story. Right, wrong, indifferent, all I wanted to do was to tell her what happened, get a decision, and move on with my life. And there is no mechanism in our legal system that allows the parties to do that unless and until you reach trial, which takes years.”
What could I say? He was absolutely right then, and he is absolutely right now. The current litigation framework is not set up to allow parties to tell their story. Instead, interim process and procedure dominate, where a dispute over the admissibility of a single piece of paper can devolve into months of litigation and thousands upon thousands of dollars in fees and expenses. The result? A justice system that’s inaccessible for most individuals, and frankly, most businesses.
But why does it have to be that way? The simple answer is, it doesn’t. There is nothing in the law, Constitution, code, statute or otherwise, that says two parties can’t tell their story to a neutral third party and be granted a binding decision. And that is why New Era ADR was created. On the premise that litigation, at its core, is about telling your story and getting a decision. Fundamentally, that is what litigation should be and this discrepancy is why I am inspired to build an alternative to the current system cracking under the weight of bureaucracy.
So is litigation broken? The correct answer is “not completely,” but hundreds of years of building procedure and process into our current system has resulted in an unnecessary level of bureaucracy that obscures the fundamental Constitutional promise of a “speedy and public trial.” It doesn’t have to be that way. Tell your story. Get a decision. And get on with your life.