The New York herald., 1922-05-21
Arbitration, Not Litigation,
Favored by Many Lawyers
BY VIM. McMURTRIE sPEER.


endar work and court attendance any
less. The ordinary client thinks that
to pay fee of $3.50 is high for a small
case taking only few hours to try.
The trial lawyers actual compensa-
ton. counting each days attendance
at court as days work, may be less
than plasterer or a bricklayer draws,
and the plasterer has no Office rent to
pay, no stenographer, clerk. telephone
and the uncertainty of getting his
money.
There are trial counsel who get $3.50
day: but there are a hundred law
yers who do not average 800 a case
TO one trial counsel who gets occa-
sional employment at $3.50 a day.
Arbitration is an excellent way TO
settle an honest difference of opinion.
The difficulty is that the majority OF
cases on the Supreme Court calendar
do not represent an honest difference
of opinion but an attempt of one party
to take advantage Of the delays and
techlicalities of the law.
Cases on the Supreme Court calen-
dar are of bwo general classes-con-
tract and tort. A man who does not
pay his bills or does not deliver mer
chaaldise that he agreed TO deliver or
does not pay his notes or violsieSian
agreement is in the contract class A
man who was run over by street car
or who is slandered or is the victim
of fraud is in the tort class. A tort
means that a wrong has been done.
while the contract calendar applies TO
where agreements have not been kept.
On a rising market many Of the con-
tract cases are brought by bsyers
who are unable to get goods of mer-
chandise delivered which they had
contracted for. On a falling market
the plaintiffs are sellers where the
buyers on one pretext or another have
refused to accept delivery.
When prices are rising the tendency
is for the man who has sold at a lower
price to evade delivering the goods
when he could. get more for them in
the open market. The reverse is the
case when the prices are falling.
There have been thousands of these
cases during and since the war.
Evasion of Contracts.
In at least two-thirds Of these cases,
probably i'm nine-tenths, the defendant
Is merely trying to escape carrying
out an Improbable contract and seek
ing for any pretext to that end. The
tendency Of arbitration is to enforce a
contract IL there has been a substan-
IA willingness to perform.
The defendant stands a great deal
better chance Of evading before the
court than before arbitrators One OF
the common defenses on a falling mar
ket Is that the goods rendered were
not up TO samples and had defects.
Few things are perfect. and it is easv
for defendants to pick flaws and 10
hire experts who may be able 20 con-
vince judge and jury where they
could not convince arbitrators in the
same line Of business.
With rising market the excuses
for failure TO deliver would not i'm
press men In the same line of bust
ness who knew market conditions as
they would a court and jury.
For Instance, almost all coal con-
tracts contain strike chuse and a
provision that the coal must be OF
certain quality and from a certain
mine. The consumer Is interested in
the quality The name of the mine
means nothing 10 him. Where a COM
pany owns number OF mines 1t IS
not difficult when the market is rising
10 have q strike OF tie up In the mine
named IN tho contract. thereby evad-
ing compulsory delivery, although coal
of as good quality could have been
delivered from other mines OF the same
company. II has also been shown that
on a rising market the coal company
would tender coal of lower quality
than Ire contract called for and let the
purchaser reject u II he wanted 70.
Tort cases are about half Of the
Supreme Court trial calenda Many
81 those tort cases are settled. While
there arc no accurate statistics. Il vs.
probable that more negligence suits
are settled than tried. The insurance
companies settle a great majority of
their negligence claims Every negli-
gence lawyer would rather settle than
try. lie has the ease on a contingent
fee and gets his money promptly on
settlement. There Is little field for
arbitration In negligence cases 10
there is TO be trial the plaintiff pre-
fers q Jury.