Creating Convergence: Debiasing Biased Litigants

It is widely perceived that litigation costs and volume have skyrocketed. Part of a veritable flood, books with such titles as The Litigious Society and The Litigation Explosion lament the historical trends and their costs for society, and numerous efforts at tort reform have been implemented at the federal and local levels in an effort to turn the tide. Some of these reforms have aimed at an alteration of substantive claims, as with limitations on joint and several liability or changes in the availability of punitive damages. A separate set of reforms aims at reducing costs through a variety of procedural mechanisms that seek to impose greater managerial control over litigation. In the domain of federal civil procedure, for example, we see the expansion of managerial power of judges over pretrial procedure under rule 16, the expansion of summary judgment under rule 56, and the greater management of discovery under rule 26. The rush to reform has engendered its own problems. Despite the salience of trials in both the media and the annals of reported case law, trials are rare events within the constellation of disputes (Insurance Research Council 1994; Keilitz, Hanson, and Daley 1993; Mullenix 1994; Smith et al. 1995). When all the dust has settled, estimates of disputes entering the