30 July 2009

A Response To Hazard On Comparative Private Law

Geoffrey C. Hazard Jr. as a retired professor of civil procedure who is one of the most famous authorities in the field. I used his textbook in law school. This month, he gave a podcast interview with him about comparative civil procedure.

An Incomplete Truth

The key points that he makes about the differences between how American courts handle lawsuits between private parties and those in almost every other country in the world have a real world basis. His main points are set out below, because they are worth considering, but in each case I have added my own caveats and context as a counterpoint to the assertions that he makes about American civil justice.

In general, Hazard's observations have validity in the narrow class of big lawsuit against big businesses for a type of lawsuits known as "torts" but do not accurately capture the flavor of other important types of lawsuits between private parties in the U.S. such as collection cases (the numerically dominant type of civil dispute and normally brought by businesses), real property cases, and business to business big dollar contract disputes (frequently the biggest dollar case in the court system).

His failure to make these distinctions is typical of the American "tort reform" movement, which generally seeks to weak legal protections for those who are harmed by business misconduct.

Misdiagnosis Leads To Bad Solutions

These lapses are important. One reason to do comparative law is to suggest policy reforms for your own system. But, if one misapprehends what is wrong wiith it, you are likely to come up with the wrong solution to it.

Reforms that work need to recognize the high hidden costs of procedures designed to protect jury authority in cases where juries are rarely used and don't perform a vital role, like commercial cases. The benefits of arbitration as a widely applicable solution are greatly overstated.

In major tort cases against big businesses, which are the unstated focus of Professor Hazard's analysis, many of the concerns raised are overstated, and the easiest way to deal with the genuine concerns may be to broaden liability in a way that reduces the scope of relevant facts in a case, moving the American system closer to a "no fault" regime with liability based upon causing an injury without regard to fault, and to devote more public resources to case management by hiring more judges and magistrates in these cases.

Professor Hazard is also correct in his assessment that personal injury litigation is a seccond rate substitute for universal health insurance, which is available in every country which is an economic peer of the United States. This too, is a "no fault" compensation regime. Routinely awarding attorneys' fees in personal injury cases (and thus, reversing the "American rule" on the subject) in some manner or other, would also greatly reduce the economic and political need to award non-economic damages in these cases.

An Issue By Issue Analysis


POINT: The U.S. is one of the only countries in the world to use juries on a widespread basis to resolve legal disputes between private parties (quite a few countries use juries or lay judges in criminal cases).

Many cases don't go to trial, but even in cases that settle, the settlement is impacted by the prospect of a jury trial.

Juries have become more representative of the general adult population then they were several decades ago when juries tended to be middle or upper middle class, better educated than average, predominantly male, and overwhelmingly white. These less educated and more diverse juries are more populist and less predictable.

COUNTERPOINT: While juries are available as a matter of right in almost all lawsuits between private parties in the U.S., they are predominantly used in a narrow subset of cases, called "tort cases." The point he makes is basically a "tort reform" argument.

Limited jurisdiction cases (in Colorado, these consist primarily of debt-collection cases involving less than $15,000 owed, residential landlord-tenant evictions and collections, small disputes (under $7,500) between non-lawyers, and temporary restraining order cases that frequently involve domestic violence), almost never involve jury trials and the prospect that a case could go to a jury trial is rarely relevant. The key issues are usually disputes entrusted to the judge like interpretations of law and contract language, rather than disputes entrusted to the jury.

Even in large dollar, general jurisdiction court cases, jury trials are overwhelmingly confined to personal injury, civil rights and employment law suits where non-economic damages and/or punitive damages are available, or where fraud is an important claim. Juries are sought primarily when resolution of discretionary issues of non-economic harm or witness credibility are involved. Jury trials are rare in disputed arising under contracts and in real estate disputes between private parties. Juries are rarely requested by either party in these cases (although a jury trial can often be requested if a request is made at the outset of a case), and all or most of the issues in a case are often resolved based upon legal arguments, documents and pre-trial deposition testimony presented to a judge prior to trial.

Real property foreclosures and mechanic's lien foreclosures in Colorado rarely even give rise to a right to a jury trial.

Jury involvement in civil justice enhances the democratic basis of the American legal system, insulating judges from political criticism in cases where the state has little to gain from making private parties unhappy. Also, juries are more predictable than critics suggest. In studies of juries where researchers secretly polled judges regarding the correct resolution of a case when the case was sent to a jury, judges usually ended up agreeing with the jury's verdict on the merits.

Non-Economic and Punitive Damage Availability

POINT: The U.S. allows the award of both compensatory non-economic damages (e.g. "pain and suffering") and punitive damages to a much greater extent than most legal systems. Most foreign legal system rarely, if ever, make damage awards for items like pain and suffering or as a punishment.

COUNTERPOINT: Non-economic damages (such as "pain and suffering) and punitive damages are generally not available in contract disputes or quasi-contract (unjust enrichment/restitution) claims, other than civil rights employment cases which are arguably a form of contract dispute. This is again a "tort reform" issue not broadly applicable to all kinds of lawsuits between private parties.

Punitive damages (also called exemplary damages) generally require a showing of intentional misconduct, reckless conduct, fraud, or in some jurisdictions gross negligence well in excess of that necessary to create liability. The U.S. Constitution requires these awards to have some relationship (expressed as a ratio of punitive damages to compensatory damages including non-economic damages) to compensatory damages, at least when the compensatory damages are non-trivial.

Punitive damages are brought almost exclusive in personal injury cases involving unusual levels of fault (e.g. civil claims for battery, drunk driving related automobile accident cases, or covered up environmental contamination incidents) and civil fraud cases (including consumer fraud). Punitive damages are sought in only a minority of tort cases, which themselves constitute a minority of general jurisdiction lawsuits between private parties, and are awarded in an even smaller minority of cases.

It is true that awards for non-economic and punitive damages are not required to closely track awards for economic damages. But, jury awards for non-economic and punitive damages are, in practice, usually closely related to the size of the award in the case for economic damages and the severity of the injuries suffered in most cases where non-economic and/or punitive damages are awarded. While these damages can't be predicted with certainty, a general idea of what kind of award is likely can usually be predicted with moderate reliability.

Contingent Fees

POINT: Lawyers in the U.S. can take cases on contingent fees; while lawyers in other countries do not. When a case is brought on a contingency fee, the case is likely to involve large damage claims and have a high probability of liability because lawyers do not have a good chance of making a sufficient fee in cases that are too small or unlikely to prevail on the merits.

COUNTERPOINTS: This too is a "tort reform" argument, and not an entirely accurate one.

Contingent fees are not restricted to high dollar cases, although they are generally restricted to cases likely to prevail on the merits. For example, collection cases brought concerning debts owed to businesses, frequently involve attorneys' who are compensated thorough contingent fees. Employment and personal injury cases are also often brought on a contingent fee basis; they are numerically much less common, but still not unusual. Collection cases are typically brought in limited jurisdiction courts and often involve just a few thousand dollars.

Professor Hazard suggested that few cases involving less than $300,000 of likely damages are brought by skilled lawyers retained on a contingent basis. In reality, the floor is closer to $30,000-$75,000 in tort cases or complex commercial or consumer rights cases, depending on the complexity of the case and the local economic situation. This is one reason why cases with individually small damage amounts are aggregated into class actions. The large dollar thresholds that Professor Hazard suggests are more typical of cases where liability is less clear or a vigorous defense is highly likely, like medical malpractice cases, or securities fraud cases.

Contingent fees are very rare, in contrast, in business to business isolated contract disputes. These case are usually handled on a billable hour basis.

The Economic Purpose of Non-Economic and Punitive Damages

POINT: The U.S. has a weaker social safety net than many countries. While personal injury victims in most countries are guaranteed medical care at public expense without regard to fault, and are entitled to a social safety net, in the U.S. many people can receive this compensation only through litigation to secure a damage award from someone who is "at fault" for the injury.

COUNTERPOINT: The U.S. does have a weak social safety net and this drives a great deal of personal injury litigation. Tort law is a poor substitute for universal health insurance, which is a sort of generalized "no fault" compensation regime. But, there is more to the economic purpose of non-economic and punitive damages in tort cases than this motivation.

Attorneys' fees are generally a component of damages in personal injury cases in foreign jurisdictions, but are generally not a component of damages in U.S. personal injury cases. The need to make a victim of someone else's careless behavior whole when some of their economic damages will go towards paying the attorney who brought the case partially explains why non-economic damages and/or punitive damages are functional in the system as whole.

In contrast, in contractual disputes and real estate disputes, where non-economic and punitive damage awards are very rare, contractual and/or statutory rights to attorneys' fees for a prevailing party are very common.

Litigation v. Regulation

POINT: Potent private litigation options in the U.S. are related to a regulatory environment that is more relaxed and less effective than in many other countries.

COUNTERPOINT: Private litigation has advantages over more direct regulation.

Damages in private litigation are frequently more proportionate to the actual harm than in a regulatory environment where harm and punishments are often see a disconnect, usually with too little harm in serious harm cases (like failure to follow workplace safety standards causing death), often too high in cases involving trivial harm (like the FCC fines for a Superbowl half-time show "wardrobe malfunction"). Unlike regulatory fines, these damages also compensate those harmed by the misconduct, rather than simply enriching the public purse.

Similarly, private litigation benefits from 20-20 hindsight, by only punishing conduct that really did pose a risk to the public, rather than punishing conduct that is in violation of the letter of some rule but unlikely to actually result in injury to someone.

These elements of the private litigation regime give businesses an incentive to focus on mitigating the most material risks using information that might not be available to even vigorous regulators. Moreover, to the extent that third parties with good information can foresee the risk, insurance underwriting can serve purposes similar to those of regulation.


POINT: The U.S. state court system is predominantly organized in an operational sense for issues like assignment of judges and jurors at a county level (a local government subdivision of a state), rather than a state or national law. Different jurisdictions have different tendencies, causing great disparities in the functional law from place to place. People bringing lawsuits exploit this fact to venue shop.

COUNTERPOINT: This is not only a concern primarily in tort cases (like personal injury and fraud cases), it is also a concern only in the narrow subclass of cases of most concern to the "tort reform" movement. Venue shopping by more powerful defendants is more common through contractual choice of law clauses in contract cases involving a dominant party (particularly consumer cases which often designate the drafting party's place of business as the venue).

There are strong legal limitations on the ability to choice a plaintiff friendly venue in legal disputes between individual plaintiffs and small numbers of defendants arising out of a contract or isolated incident causing harm. Contracts often specify a particular venue. Court rules generally limit venue to the place where a defendant arises or the suit arose.

People bringing suits have the ability to choose a particularly friendly venue (a practice called venue shopping) like mass tort cases (like securities fraud, consumer fraud, and products liability cases) where harm occurred over a wide areas, in defamation cases (i.e. libel and slander) where a word is published in a widely distributed medium, and in patent infringement cases involving widely distributed products. Bankruptcy cases are also often brought in jurisdictions with little genuine economic relationship to the bankrupt party.

Statutory reforms address many of these concerns either by limiting venue choice or by transferring such cases to federal court. Cases brought by domestic parties against exclusively foreign parties can be removed to federal court. So can suits arising under federal law or subject to special legislation. For example, almost all securities fraud cases involving publicly held companies and multi-jurisdictional class action cases are restricted to federal court. Patent law and bankruptcy cases are also largely restricted to federal court.

Federal courts often (as in the case of Colorado) preside over and operate at the level of an entire state (like Colorado) and where they do not, they typically involve a more demographically and ideologically balanced region that includes an entire metropolitan area or economically meaningful division of a state. Moreover, federal courts are bound by appellate courts with jurisdiction over a multiple state region, as well as the U.S. Supreme Court which primarily interprets the law that comes up in federal rather than state cases outside the criminal law sphere.

The elite nature of the federal court bar, its larger share of big civil cases, the broader demographic makeup of federal court juries, and the broader scope of federal appellate courts makes federal court litigation more predictable than state court litigation for national and international businesses. The federal judiciary is also, on average, currently more conservative than the typical state judiciary.


POINT: There is little difference between a U.S. and foreign forum in cases where a contractual arbitration clause covers the entire dispute. Arbitration clause can cure many of the faults of the American civil litigation system.

COUNTERPOINT: Pre-dispute arbitration clauses aren't available in cases involving people who haven't entered into contracts with each other (with rare exceptions, like fee disputes between Realtors who consent to arbitration as part of their professional association membership). But, a large share of cases where non-economic damages or punitive damages are available are disputes between private parties with no contractual relationship.

Thus, arbitration usually applies to the kind of contract disputes where the elements that make American civil justice unique are less prominent; moreover some of the most popular arbitration systems in the U.S. adopt by reference the rules of civil procedure that would have applied in a public court.

Also, there has been considerable hostility to pre-dispute arbitration requirements in contracts with consumers. As a result, in the past month, the two largest providers of this kind of arbitration have left the market, and legislation that would greatly curtail the use of arbitration where it is most widely preferred by big businesses is being consider by Congress. No one doubts the usefulness of arbitration to resolve small stakes disputes that are likely to recur between economic equals. But, an arbitrator's freedom to ignore the law and facts if desired makes it a poor forum for "bet the farm" cases or cases where there is a fear that one party could unduly influence the arbitrator.

Arbitrators tend to be more educated than jurors, and arbitrations proceed more quickly on average than public court cases.

But, the expense of arbitration is often not that different from the expense of a public court case; it is just more concentrated. Some of the cost savings of arbitration in the process are offset by a much higher cost to pay for the services of the arbitrator.

Hazard's suggestion that arbitration is more predictable than the outcome of a public court case is doubtful. A trial court decision can be appealed if the decision is based upon a procedural or substantive law error, and this is often done in large general jurisdiction court cases. In contrast, arbitration decisions generally cannot be appealed, even if the arbitrator's decision clearly misinterpreted the law or was based upon a finding of facts contradicted by the evidence received. This unpredictability is one of the main reasons that arbitration clauses are rare in high stakes business to business contracts.

From a big business perspective, the main reasons to have arbitration clauses are to (1) remove the availability of remedies like punitive damages and procedural options like class action cases, and (2) to reduce the duration of the process compared to public court dispute resolution in cases where certainty of outcome is less important because the stakes in each individual case are small for the business.

Overall Duration and Cost

POINT: Civil litigation in the U.S. can be longer and more expensive than in other countries, with the wide availability of broad pre-trial discovery (such as depositions of witnesses under oath and mandatory document production) accounting for a large share of that cost and time delay.

Large businesses abroad and in the U.S. fear the U.S. system of civil justice relative to other countries. People aligned with people who bring suits against large businesses tend to prefer the unique features of the U.S. system.

COUNTERPOINT 1: First, again, he overstates the scope of the problem which is particular to one subset of the general jurisdiction civil case docket. Discovery time and expense can be high, but this varies by type of case. It is not a major problem in all cases. The cases Hazard's concerns reflect the deepest worries about are exceptional. Discovery in personal injury cases involving isolated incidents, or relatively straight forward contractual disputes involving a small number of parties, is often relatively modest.

On the other hand "business tort" and "mass tort" cases like those alleging anti-trust violations, product liability claims, securities fraud cases, and consumer fraud cases, do often involve massive amounts of discovery, both through depositions and document disclosures. Still, one has to recognize that this is a small subset of all lawsuits between private parties handled by our court system.

COUNTERPOINT 2: A key concern that he neglects to mention is one of the most important reason that American trial lawyers and defense lawyers devote so much time to pre-trial preparation through discovery, and are so settlement prone, both of which are attempts to reduce "surprise" at trial. This is finality.

-- Finality In U.S. Jury Trials --

The grounds upon which a U.S. jury verdict can be overturned on appeal are very narrow. In this respect, the U.S. system is more like arbitration, and less like the civil law system.

In the U.S., an appeal of a jury verdict can raise only questions of law resolved by the judge (primarily questions of trial procedure and jury instructions), and the argument that the factual record provides no basis upon which any reasonable jury could have come to its conclusions.

Applications of facts in particular cases to broad legal standards (e.g., does conduct entirely captured on a good quality videotape among to "negligence" in a particular case) are treated as factual questions, even if they are, in theory, legal issues. Resolutions of these applications of facts to broad legal standards don't have precedential effect in te U.S. courts, and juries are generally completely unaware of how prior, very factually similar cases have been resolved.

Furthermore, since jury's typically decide only who wins and how much to award in damages (often a single number that does not distinguish between economic and non-economic damages), a jury verdict can be upheld even if the actual factual reason for the jury's verdict was not supported by the evidence at trial. For example, a verdict can be upheld because a jury could have disbelieved a key wiitness, even if the jury actually believed that witness.

In contrast, a judge must generally state both his findings of fact and conclusions of law in writing in detail when rendering a verdict, which makes it easier, in practice, for an appellate court to reverse a trial judge's ruling for a lack of factual basis.

Also, the trial upon which a judge or jury rules in the U.S. is very compact and rarely considers factual or legal arguments raised prior to trial if they are not renewed in the context of the trial.

-- The Hidden Costs Of Finality --

In practice, this means that there is a very high premium in American trial practice on going to great lengths to be prepared for anything that could happen at trial in a big case, even if it is unlikely to come up, has already been discussed extensively prior to a trial, or shouldn't be subject to reasonable dispute. Moreover, an American trial lawyer also has to present his entire case to make available all possible arguments on appeal and to make sure that everything that matters to the trier of fact is covered since there is little give and take between the trier of fact (i.e. the judge or jury) and the lawyers to determine how much the judge or jury understands and agrees upon.

-- The Civilian Approach To Finality And Its Implications For Lawyers --

In contrast, in civil law countries, it is generally possible to raise both mistaken findings of fact and mistaken findings of law on appeal, and to present new evidence concerning mistaken findings of fact during the course of the appeal. Also, civil law litigation frequently involves multiple single issue hearings with feedback provided along the way to guide lawyers in determining what factual and legal issues are truely disputed and require more development.

A French lawyer can afford to take the chance that the other side will challenge the credibility of a minor but important witness and omit evidence such as documentary foundations that would go establish the credibility of that lawyer, because if the point is raised and proves decisive, it can be relitigated on appeal. Avoiding the cost of extra preparation 19 times out of 20, if less expensive if one time out of 20, where the weak preparation makes a difference, the issue can be relitigated on appeal.

The availability of an appeal on an issue of fact that can be addressed with new evidence also more generally makes surprising the other side at trial a much less attractive strategy in litigation for lawyers.

In the U.S. if you can raise a point that sways a jury one way (e.g. that a key witness lied about an affair in his testimony), even if you know that there are counterarguments (there are three witnesses who are more inconvenient to call to the stand who could corroborate the material point made by the key witness), because you know that the other side won't have the evidence at hand necessary to counter that point effectively, it makes strategic sense to keep that ace in the hole until the last moment. An unprepared opposing counsel will probably never get a chance to present the evidence necessary to make the counterargument annd could lose as a result in a way that an appeal couldn't address. So, U.S. trial lawyers devote a great deal of time to predicting what opposing counsel will do at trial.

The amount of effort needed to secure an extra little bit of certainty regarding a case's outcome is very high. It is many times more expensive to be ready for 99% of things that could come up, than it is to be ready for 95% of things that could come up. So, the amount in controversy, rather than the amount of preparation necessary to be reasonably ready to make all of the points likely to come up, drives the cost of litigation in big stakes cases in the U.S., but that relationship is much less strong abroad.

In contrast, if you win through trial by surprise in Germany, you simply set your client up for an appeal, in which your cards have been already shown, that is likely to result in your client ultimately losing the case after incurring considerable additional expense in connection with the appeal. Moreover, in Germany, you can only win through trial by surprise, if your issue is raised in one of the last hearings in the case, and your client will likely have to pay the other side's attorney fees in connection with the appeal if the case is reversed on appeal.

Preserving a record for appeal much less important in France or Germany. Generally, a verbatim record of what was said at the trial level will not be kept at all. Instead, the judge will take notes and those notes will be used by the judge to prepare detailed findings to support the judge's verdict.

In general, the only facts it makes sense not to disclose in a civil law system, are those facts that will never come out until the trial and the deadline for an appeal of its conclusions is reached.

-- Reconsidering Finality And Jury Trial Availability In The U.S. --

Americans have the finality rule, in part, out of fear that there would be excessive appeals if findings of fact could be appealled (something that isn't born out by civil law practice). It is also a function of the impossiblity of respecting a jury's authority, a democratic political value, after a panel is irrevocably disbanded while also reviewing findings of fact against the record.

This consideration also prevents judges from resolving factual issues upon which there is any genuine dispute prior to trial, even when the issue isn't actually very close. The rules of civil procedure, designed with jury trials in mind, don't even make exceptions for cases where the judge will decide the case at trial without a jury.

Allowing judges in American court cases involving private parties to rule on factual issues at any point in a case where a jury trial has not been requested and sufficient evidence is available (predominantly commercial cases), could greatly reduce the duration and cost of litigation, by resolving factually clear cases sooner and reducing the need to prepare for trial without judicial feedback. This rule adjustment could be even more powerful if the right to a jury trial in state court (where it is not a constitutional right in civil cases) were abolished in the cases not involving non-economic damages or fraud where it is more frequently invoked.

Allowing appeals on issues of fact, as well as law would even more radically reduce the cost of litigation, by dramatically reducing the incentives to hide key facts until trial, and by reducing the importance of pre-trial discovery and preparation.

The importance of a jury trial in personal injury, civil rights and civil rights employment cases may outweigh its high hidden costs. But, in commercial cases, jury trials may have outlived their usefulness.

Interestingly enough, however, these reforms, which would not necessarily systemically favor either plaintiffs or defendants, have largely escaped discussion in civil procedure reform debates.

COUNTERPOINT 3: A third key consideration is the expense associated with administering the system.

Civil law countries have far more judges per lawyer, per lawsuit, and per population, than the United States. Serious cases in civil law countries are not handled by juries, but they are decided by three judge panels. It isn't unusual for a "supreme court" which is a final court of appeal in those countries to have dozens of lawyers on it, who organize themselves by subject-matter expertise.

Judges aren't cheap. But, a greater number of judges in the system allows the system to expect closer judicial supervision of a case. Judges who are more involved in cases on the merits as they develop are in a better position to restrain excesses by lawyers. For example, most key witnesses in the U.S. are examined at great length by lawyers without the presence of a judge at great length prior to trial and rules limiting the scope of that examination with no one to enforce them are largely unworkable. In contrast, judges preside over witness questioning in civil law countries, discouraging unnecessary questioning on side issues. Both in the U.S. and abroad, lawyers are much more reasonable when a judge is present than when one is not.

Civil law countries use increased public expenditures on judges to reduce private litigant expenditures on civil litigation. The United States, which is congenitally resistant to taxes and public spending, administers its court system at a comparatively slight cost, in exchange for allowing lawyers to have much more freedom to engage in costly litigation activities prior to trial.

Close judicial supervision also speeds up the process, because the parties don't have to come to a grinding stop while waiting for guidance on some issue raised in a case, until a judge with a huge caseload can take a moment to get up to speed and rule upon an issue in their case.

The U.S. might find that the system worked better, particularly in those cases where there are important reasons for retaining a right to trial by jury in civil cases, if greater judicial resources were devote to case management -- perhaps by putting civil cases where a jury right was retained into special courts limited to those cases with greater staffing resouces, so that discovery excesses could be more directly contained, and issues that could be resolved prior to trial were resolved more often.

COUNTERPOINT 4: A fourth key consideration is that the substantive law intentionally makes tort cases expensive to litigate. Businesses have accepted high litigation costs as a political compromise to make success on the merits more likely.

In cases brought most often by businesses, enforcing contract rights, strict liability is the rule. It doesn't matter why you can't pay your bill, you are legally responsible for doing so.

In contrast, American law usually imposes liability for non-contractual harm requires proof not only that the defendant caused the injury or was related to it in some other significant way, but that negligent, reckless or intentional conduct caused this to happen.

For example, the U.S. devotes vast amounts of resources on a case by case basis to determining who was at fault in car accidents, even when it is undisputed that someone was else was hurt because their car collided with the injured person's car. European law generally focuses more on causation and less on negligence. Liability is easier to establish under the applicable legal standard in most cases.

The U.S. has toyed with the idea of "no fault" regimes in some situations. After decades of expensive litigation over fault in workplace accidents, the worker's compensation compromise, which guarantees compensation without regard to fault for any injury caused by activities in the workplace, in exchange for a ban on workplace injury lawsuit in court and a dramatic curtailment of non-economic damages and a pay as you go approach to economic damages (as opposed to a final numerical determination at trial by a jury of matters like future medical costs in American personal injury cases).

Similarly, many states, including Colorado, have experimented with "no fault" automobile insurance. In these systems, everyone must have insurance and the insurance compensates all economic damages in small automobile accidents without regard to who was at fault, in exchange for a ban on lawsuits in these small cases.

American personal injury laws and child custody laws make all manner of considerations relevant, greatly expanding the legitimate scope of pre-trial discovery regarding facts. In contrast, American contract law deems legally irrelevant all sorts of logically important issues like the discussions that took place in the negotiation of contracts that are on their face unambiguous.

The smaller the number of issues that are legally relevant, the less expensive they are to litigate.

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