This chapter concerns the procedure for those rare but important civil disputes which proceed through the entire litigation process to judgment and, in some case, beyond. As this book has demonstrated, most cases settle prior to trial, which means that those cases which proceed through trial and on to judgment tend to be the ones with the most adversarial and persistent parties. However, for some cases, even judgment does not bring an end to proceedings. Judgments are considered final and enforceable as soon as they have been delivered, but they may also be incomplete and appealable and further disputes can arise after judgment. Appeals are a critical example of one of the key balancing themes in this book — being the balance between due process and efficiency.1 Appeals provide an opportunity to concentrate the hearing of the most legally difficult cases before the highest judges, which enables the development of high-level binding precedent by superior courts. However, appellate processes come at a high price for the efficiency aims of civil procedure as they require significant time and money.

When plaintiffs “settle,” they actually give up their lawsuit to enter into a settlement program that may or may not compensate them. So, mass-tort “settlements” don’t end disputes – they contractually move them out of the courts and into private resolution, or alternative dispute resolution (ADR) as it’s known. For instance, in American Medical Systems, all disputes over pelvic-mesh payouts went directly to JAMS, a for-profit arbitration company. And in the Conserve Hip Implant proceeding against Wright Medical, the court appointed a special master from JAMS to preside over the private settlement, used its “inherent authority” to give that special master the final say over any settlement appeal, and prohibited judicial review of those appeals. These private dispute resolution programs allow mass-tort defendants to regain some of the bargaining advantages they enjoy in the consumer context: they can pick the arbitrator, dictate the procedures used, and select which evidence the arbitrator may consider. Plaintiffs, however, don’t know whether they’ll recover anything. Claims administrators may tilt justice in favor of the repeat players who pick them, confidential awards make it hard for plaintiffs to tell if they’re treated fairly vis-à-vis one another, and internal “appeals” processes offer little relief.