Document Type

Article

Publication Date

Winter 2015

Abstract

Does a "contest by judicial process" describe litigation's "means and applications"? Overwhelmingly, no. Litigation is not about judges: it is about default judgments, settlements, plea bargains. It sometimes does not even involve judges at all. Litigation is not about trials: the amount of litigation that goes to trial is infinitesimal. It is not about "process": the process is so minimal that to dignify it with that term stretches the word beyond recognition. It is not a "contest": it is an exercise where one side has no plausible chance of winning, especially since that side either has no lawyers or lawyers with overwhelming caseloads to enforce whatever written rules do exist.

This Article explores the reality of litigation by, first, examining some of the psychological bases for the power of the standard—and misleading—conception of how litigation is perceived. It then addresses how this definition omits the overwhelming amount of litigation as it truly is: litigation involving low income litigants in both civil and criminal cases. The Article concludes by examining whether public conception of litigation will ever reflect what "litigation" really is.

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