Cases are being settled based on cost, not merit, according to results of a survey released today.CIOs know that electronic discovery efforts are a financial drain. A new survey of trial lawyers shows that attorneys agree.

According to the survey (registration required), 85% of respondents believe the discovery process is too expensive. Seventy-five percent say electronic discovery is driving up overall discovery costs.

Eighty-three percent say litigation costs compel some cases to settle that could have been tried on merit. Almost 71% say that counsel uses discovery as a method to force a settlement.

Nearly 77% of trial lawyers also believe the courts don't realize how hard the e-discovery process is.

However, like countries armed with nuclear weapons, no one is ready to give up on e-discovery. More than half of the respondents say they had cases that raised e-discovery issues. Of those respondents, 86% agree that "the 2006 e-discovery amendments allow for efficient and cost-effective discovery of electronically stored information at least some of the time."

Also, trial lawyers aren't ready to overhaul the Federal Rules of Civil Procedure (FRCP), which provide the guidelines for e-discovery requirements. Only 35% agreed the rules needed to be reviewed and rewritten.

How to account for these contradictions? My guess is you could translate these results as "When e-discovery leads to an outcome that's good for me and my client, I'm all for it."

A total of 1,494 trial lawyers, all members of the American College of Trial Lawyers (ACTL), responded to the survey, which was conducted by the ACTL and the Institute for Advancement of the American Legal System at the University of Denver.