Originially from: World Arbitration and Mediation Review (WAMR)

MINITRIALS: WHEN, WHERE AND HOW TO USE THEM
By Tom Arnold, Arnold White & Durkee, Houston, with the assistance of Robert
J. McAughan, Jr. This article discusses why ADR is needed for the speedy
resolution of complex disputes, including patent disputes, and describes the
virtues of minitrials in this context. The author then discusses some instances in
“which, based on his own experience, the minitrial was not useful in ending the
dispute, and suggests guidelines for avoiding inappropriate and wasteful
minitrials. Finally, he makes some specific suggestions on how and when to enter
into a minitrial agreement.
I. The Need for ADR
Major court litigation in the U.S. has become a modern version of trial by
combat—intellectual combat rather than physical combat, but combat between
hired gladiators just the same. If we are to serve our clients and society’s need for
a responsible means for dispute resolution, we must find ways to avoid the
spectacle of the Roman gladiators in the courtroom.
Today, many federal district courts are so overloaded with criminal cases that
most if not all of their major civil cases, especially patent and complex business
cases, are on semi-permanent hold until more federal judges are appointed. Three
times in one recent four-year period, our office has had trials interrupted for
months where plaintiff’s evidence was concluded months before the defendant
started presenting its case. Is that a fan1 trial procedure, to decide a case with one
party’s evidence freshly in mind and the other party’s evidence lost in a vague
memory of over a semester ago?
I’ve had half a dozen cases not decided within three semesters of the close of
evidence and three not decided in three years of the close of evidence. One of my
partner’s cases remained undecided seven years after the close of evidence. How
can the judge even pretend to recall the evidence semesters or years after hearing
it? I’m aware of two cases that were not finally decided 13 years after filing, one
that was not finally decided 27 years after filing.
These were all patent cases where the patent asset is a wasting asset with only
17 years of life. What is the value of the constitutional/statutory grant of a right to
preclude others from stealing your invention, if the courts can’t decide and enjoin
before your market is disrupted or your patent even expires?
Many complex business cases cost over a million dollars a side to try, and not
rarely more than $10 million. How many parties, how many cases, will support
that price for such “justice”? An IBM officer testified before a committee of