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In the fall of 1994, the Los Angeles Federal Bar Association held a meeting for some hundred lawyers to discuss then-recent changes to the rules that govern the processes of litigation in the federal court system. At that time, of one hundred civil cases commenced in federal court, about eight started trial; the remaining ninety-two ended in other ways. Introducing the program, a federal district judge stated that he regarded the eight percent trial rate as evidence of "lawyers' failure."

That got my attention: a person whose title was "trial judge" equated going to trial with failure. His relevance rests on the fact that he is not alone. Found in reported decisions is the phrase "a bad settlement is almost always better than a good trial." Found in rules and policy statements of the federal judiciary are increasing obligations of judges to press parties toward settlement. For example, a local rule in the federal trial courts of Massachusetts requires a judge to raise the topic of settlement at every conference held with attorneys. Moreover, this growing law of settlement is not simply hortatory. Court rules and statutes require litigants and their lawyers to engage in a variety of settlement processes; penalties flow from failure to comply.

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