There are few clichés more common in our civil litigation system than the reviled “trial by ambush.” Basic requirements of our legal system are orderliness and predictability and there are not supposed to be “surprises” at trial.
George Bellows, Dempsey v. Firpo, 1924
Analogize to a boxing match (or any adversarial “dispute resolution” forum). You have got to have rules — when the fight starts, how it is decided, permitted equipment, prohibited maneuvers, etc. The better boxer will not prevail against the adversary who punches him in the back of the head before the first bell.
The case of Fagen v. Exergy, which we have covered at some length, has seemed to be a symptom of a flawed, if not broken, “dispute resolution” system. While the case involves a failed multi-million dollar wind energy project, it does not seem to have involved particularly complicated facts or law. Nevertheless, the litigation has been protracted and expensive.
Is it finally time to call this fight?
