A Less Expensive Option for Resolution in Civil Litigation
When some think about civil litigation, they think about what is often portrayed in shows and movies: lawyers examining witnesses and presenting arguments in front of a judge or jury at trial. In reality, trials in civil matters are rare. The reasons why the vast majority of civil cases resolve before trial include the fact that it often takes at least a year from when a lawsuit is filed to get to trial, no outcome at trial can ever be guaranteed, and it is expensive to take a case all the way through trial. To potentially avoid the risks and costs associated with a judge or jury trial but also obtain a resolution on the merits, certain parties in Washington are permitted to take advantage of an option authorized by the Legislature called civil arbitration or sometimes referred to as “mandatory arbitration.” This article summarizes the arbitration option available in certain civil cases.
The arbitration option discussed in this article, which is not to be confused with arbitration that may be required pursuant to a contract, is available in civil matters where the sole request is a money judgment and the amount in controversy is, in most counties, less than $100,000.00, exclusive of fees, interest, and costs. The statutory civil arbitration system was designed to alleviate court congestion and reduce the delay in hearing civil cases by providing parties with a way to resolve certain cases in a relatively quick and inexpensive manner.
Generally, near the beginning of a case filed in superior court, a party can file what is called a “statement of arbitrability,” which notifies the court and the other party (or parties) that the case is subject to statutory civil arbitration. By certifying that a case is subject to statutory civil arbitration, a plaintiff limits their recovery to a maximum of $100,000.00 (again, exclusive of fees, interest, and costs). Unless a valid objection is raised, the case will be transferred to arbitration.
After a case is transferred to arbitration, the next step is getting an arbitrator appointed. The arbitrator is most often a practicing attorney or a retired judge and serves as the judge in the arbitration matter for most purposes. Parties may either stipulate to an arbitrator or select an arbitrator from a list provided by the specific county’s arbitration department.
Once an arbitrator is appointed, parties may conduct only limited discovery without approval by the arbitrator, which often greatly reduces the costs involved. An arbitrator typically sets an arbitration hearing date for approximately two months after the date they are appointed.
Two weeks before an arbitration hearing, the parties are required to submit a “pre-hearing statement of proof,” which outlines the key evidence that will be presented and who is going to testify at the arbitration hearing. Certain documents provided along with a pre-hearing statement of proof are presumed admissible for purposes of the arbitration hearing. Such documents can include bills for property damage, estimates for property damage, photos, written statements from witnesses, and expert reports.
At the arbitration hearing, which nowadays is typically conducted via Zoom, the rules of evidence are often relaxed. Parties generally make an opening statement, present testimony from a limited number of witnesses, and present a closing argument. Arbitration hearings generally last a day or less.
Within fourteen days after the arbitration hearing, the arbitrator issues their award. The award may be reduced to a judgment where both parties forego the option to appeal.
In the event a party is dissatisfied with the arbitrator’s award, they have the option to “appeal” by filing a request for a trial de novo in the superior court. When a party appeals the arbitration award, the case is set on the trial calendar, and the case proceeds as if arbitration never occurred. In other words, the “appeal” right under the arbitration rules is simply an option to have a judge or jury decide the case.
In appropriate cases, the trial de novo option is valuable. However, there is a catch. The party who appeals must improve their position at trial to avoid paying not only the amount of the judgment at trial, but also the other party’s costs and attorneys’ fees incurred after the trial de novo was filed. Therefore, choosing to file a trial de novo is a risky proposition.
While not every case is suited for civil arbitration, and while arbitration has its downsides, arbitration is an option that litigants should at least consider in appropriate cases. If you have a claim that you think may be suited for arbitration, the lawyers at Beresford Booth are available to discuss to help you navigate your specific situation. Do not hesitate to contact us at info@beresfordlaw.com or by phone (425) 776-4100.
