The greatest advantage of arbitration is certainty and speed of scheduling and obtaining a decision. In trials in the Massachusetts judicial system, precise scheduling is very difficult. Every personal injury lawyer has had the experience of paying an expert to hold two or three days open because of the uncertainty of when exactly he would be able to testify. Last-minute cancellations of trial dates because of a criminal matter or other judicial emergency, is not unusual. I have had a case postponed by the court, twice, each time within a week of the scheduled trial. A colleague of mine who is a superb plaintiff’s lawyer, once had a case continued six times. Clients often become frustrated with such inefficiencies, and lose faith in the justice system. By contrast, an arbitration is scheduled exactly as the parties agree. The schedule can be flexible and can accommodate the needs of the lawyers and expert witnesses. The arbitrator usually writes a decision within twenty days of the end of the arbitration.

In the case I just tried before an arbitrator, the arbitrator was a superb retired judge who left the bench several years ago. My co-counsel and I prepared and tried the case with the same thoroughness and ardor as we would a jury trial. We prepared notebooks of selected medical records and deposition transcripts, and spent hundreds of dollars to enlarge key exhibits and medical illustrations. I enjoyed the process. While the trial of the case was intense, the setting was relatively relaxed. The trial took place in a large conference room. Testimony was preceded by coffee and conversation. Rules of evidence were applied, but in a relaxed fashion, which struck me as more helpful than imposition of strict rules of evidence. When disagreements did arise, they could be worked out or argued to the arbitrator in a thorough and unhurried manner.

Although I enjoyed the arbitration process, I would not use it routinely for every serious personal injury case. In the particular case, my colleague and I believed that we would not sacrifice anything for our client by forgoing a jury in favor of an arbitrator. In many personal injury cases, however, I would recommend that my client take his chances before a jury. There is something sobering and important to our democracy to have disputes decided by citizen juries.

Whether arbitrations becomes a commonplace method for litigating medical malpractice cases and other cases involving wrongful death or catastrophic personal injury, will probably have to await the experience and reactions of trial lawyers over the course of another decade. Lawyers talk and listen to one another. A litany of horror stories will probably limit the use of arbitration by plaintiffs’ lawyers. On the other hand, tales of fair shakes and just results from trusted colleagues, may result in arbitration being added to the tools used to seek justice in personal injury cases.