Denver Bar Association
July 2003
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Trial By Combat: The Law Evolves

by Marshall Snider

Taking the law into your bare hands

One of the wonderful aspects of the law is how it evolves and grows to meet modern needs. In prehistoric times, disputes were decided by force: if you improperly settled in my cave, I resolved the dispute by bonking you on the head with a club and evicting you. This use of VDR (Violent Dispute Resolution) worked for eons, but as society developed, humans sought a more civilized dispute resolution approach.

Many new ideas were tried on for size. Village elders stirred the entrails of a chicken to divine just answers to local disagreements. In the criminal law field, some societies used dunking to identify witches and the Spanish Inquisition developed torture as a truth-finding tool.

But for a quick, fair resolution of conflict, you couldn’t beat trial by combat. Today we use courts to resolve disputes not so much to ensure that the result is correct, but to establish a system of final adjudication. From society’s standpoint, as long as there is a neutral decision-making process, accepted as final by the community, the goals of dispute resolution are met. And all of these objectives are gained as easily in trial by combat as in protracted litigation.

Put the two disputants in a room with a couple of deadly weapons and see what happens. The result is an accepted, final resolution determined by neutral means (the resolution is, indeed, quite final for at least one of the disputants). No costly discovery or complicated procedural rules. Conflict resolved; next case, please!

Unfortunately, we tired of trial by combat over time for reasons that remain unclear; something about having a civilized society, I think. So we moved to a judicial process, all neat and lacking in blood. Neutral courts resolved disputes and we accepted the results. Unfortunately, this method of conflict resolution was so popular that over time monumental court backlogs developed. In addition, lawyers turned trials into a costly, scorched earth process that could be afforded and endured only by the most wealthy and committed litigants.

So, 40 or so years ago, we were back to square one, looking for an affordable and fair system. And we came up with alternative dispute resolution (ADR). No one was very crazy about ADR until around 1990, and then all conflict-resolution-hell broke loose. Arbitration, mediation, med-arb, arb-med; you name it, the processes and providers of services proliferated like weapons of mass destruction in the countries that don’t like us. It seemed that every retired judge or attorney set up an ADR shop. And of course, delays and cost increases ensued, and it was time to start over again.

It was absolutely refreshing recently to see a modern move back to VDR and trial by combat; quick, cheap and final. This occurred in New Zealand, which is, despite what you may think about sheep and their owners, an extremely advanced and civilized society (the descendants of the clergy, the Kiwis will remind you, should you make the unpardonable sin of confusing them with Australians, who are the descendants of convicts).

Two big telecom companies in New Zealand developed a dispute over market territories. Their CEOs and boards of directors looked at all of the dispute resolution options, ranging from fire-and-brimstone litigation to soft and fuzzy mediation and its ilk. None of these ideas resonated, however; whatever they did would be costly and protracted. So, they took a page from history and decided that the fastest, cheapest way to resolve this conflict was to have the two CEOs arm-wrestle for the territory. You may have seen their epic bicep battle on TV earlier this year. Just like that, a forearm hit the table and it was over.

I think the Kiwis are onto something, and I propose that as attorneys we begin to explore trial by combat options to litigation. We could even put a provision into our Code of Professional Responsibility requiring lawyers to advise their clients about VDR before resorting to the courts.

The options are provocative. CEOs could mud-wrestle for markets. Court TV could televise disputants in a legally oriented version of American Gladiators, complete with helmets and pugil sticks (last one standing wins a fully executable judgment). Prosecutors and defense lawyers would bulk up in order to better their chances of convictions or acquittals in Criminal Case Sumo Wrestling (televised on ESPN 2 or The Nashville Network; no debates about cameras in the courtroom here).

It is wonderful to see that the law has evolved again to meet changing times and needs. This is what makes lawyers so valuable to society. Keep up the good work, colleagues. Even as we speak, the Department of Revenue is busy working up the protocols for Fear Factor Driver’s License Revocation; swallow those maggots and you get to keep your wheels.

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