The “Tiger King” documentary is one of the most outrageous things ever produced for television and it has served up no shortage of talking points. Buried under the many, many, many layers of intrigue are a couple of interesting observations for the world of civil litigation.
A civil lawsuit can be a long, expensive, and laborious process, and the courts have taken steps to expedite the process of civil litigation where possible. In particular, they have encouraged a much greater use of the mechanism of summary judgment. In summary judgment, a case will come before the Court on a motion, rather than on a full trial, and the judge will make a ruling based on the materials before the Court, which will usually consist of predominantly or solely written materials. On summary judgment witnesses are usually not called to testify in court, having previously given their testimony in the form of a written affidavit. Not having live witness testimony greatly reduces the amount of time spent in court and can significantly streamline the process.
We tend to think that this is a good thing and, overwhelmingly, it is. There is an old saying in law that “justice delayed is justice denied”, and summary judgment is a powerful tool for fighting the delay that the court system seems to be so well known for. Summary judgment is popular because it allows a litigant to go to court and obtain a judgment sooner than they otherwise would have.
The lesson from Tiger King is that summary judgment streamlines the process for both the winner and for the loser.
The documentary tells the story of Carole Baskin’s civil lawsuit against Joe Exotic for copyright infringement. Carole won the lawsuit on summary judgment. She never had to go to trial: she got the Judge to rule in her favour before a trial. As the loser in the lawsuit, Joe Exotic’s comments are notable. He is filmed at the time saying, “You know the saying that you get your day in court? Well I don’t feel like we got our day in court.”
“Justice delayed is justice denied”, but another old saying in the legal profession is, “Justice must not only be done, it must also be seen to be done.” Summary judgment is a powerful procedural mechanism for shortening the length of civil disputes, but one must always be mindful of the countervailing concern, which is that a quicker process could be seen as being less thorough and/or less rigorous, which in turn could lead to the perception that the process is less fair because shortcuts are being taken on the journey to justice.
If it means that a lawsuit which would otherwise take years ends up taking months, with largely the same result, then obviously this trade-off is worth it. But it is useful for those of us who participate in the civil litigation system to remember that the efficiencies achieved by summary judgment do not come without risks. In this case, the risk being that the party who loses on summary judgment might be less likely to accept the result as legitimate.
The other observation to take from Tiger King should be warning to all lawyers who, in this age of social distancing, are looking to set up mediations by remote means. If you have seen the documentary, you cannot forget this scene:
After having lost the lawsuit on summary judgment, Joe Exotic entered into mediation with Carole Baskin, with a view to coming to an agreement about how to pay the judgment. They hired a mediator and, since Joe lives in Oklahoma and Carole lives in Florida, they conducted their mediation on a conference call.
There are a few basic rules about a mediation, one of the most important of which is that a mediation is confidential. Unbeknownst to either Carole or the mediator, Joe allowed a business associate of his to sit in on the conference call. As the mediation progressed, this business associate, who had up to that point kept silent, suddenly exploded in a fit of rage, levelling a barrage of disgusting and vile epithets at Carole: the sort of sickening profanities which would make even the most shameless blush. Needless to say, the mediation was not a success.
It is a real-life example of why a mediation held remotely is not a good idea: for the simple reason that the mediator cannot control the room. They have no way of knowing whether or not unauthorised individuals are being made privy to the discussions and they cannot guarantee the confidentiality of the mediation. The lesson from Tiger King being that when you are dealing with a character as volatile and off-the-wall as Joe Exotic, you should insist on holding your mediations in-person, so you can exert at least some measure of control over the process of the mediation.