f/k/a archives . . . real opinions & real haiku

December 27, 2003

Are There Really Too Few Trials?

Filed under: pre-06-2006 — David Giacalone @ 8:54 pm

dunptruck In this season of bliss, it’s probably good that the public is ignorant of the legal profession’s newest crisis: too few trials, a/k/a Vanishing Trials.   As reported here, the ABA’s Litigation Section held a Symposium on December 12 – 14 in San Francisco, delving into the reasons for a dramatic decline in the overall number of trials, despite an increase in case filings — a situation that is “troubling many litigators.”  (“Vanishing Trials’ Issue Won’t Go Away: Conference Seeks Reasons and Solutions for Decrease,” ABA eJournal, by Stephanie Francis Ward, Dec. 19, 2003)

A study by Professor Marc Galanter was at the center of the Symposium.  In the Executive Summary, Prof. Galanter notes that “A central feature of the common law process (and of popular understanding of it) is shrinking while the legal system is expanding along every other dimension.”  He points out that:
  • In the federal courts, the percentage of civil cases reaching trial has fallen from 11% in 1962 to 1.8% in 2002. In spite of a five-fold increase in case terminations, the absolute number of civil trials was 20% lower in 2002 than it was 40 years earlier.
  • As trials diminish we find in their place increases in settlements, in disposition by summary judgment, and in diversion into Alternative Dispute Resolution.
  • The more robust explanations seem to include increases in cost and risk that discourage parties from proceeding to trial, institutional changes in procedure that encourage such avoidance, and a corresponding shift in the ideology of judges, who increasingly view their role as dispute resolvers rather than adjudicators. These may in turn reflect fundamental changes in the organization of legal services and the way that legal professionals and parties view the legal process.

Galanter acknowledges that “The consequences of the decline in trials are even more difficult to fathom than its causes,”  but he seems to worry that “If most outcomes reflect ‘bargaining in the shadow of the law,’ it appears that the portion of the shadow cast by formal adjudication may be shrinking.” (semble)

Call me biased or a fool, but Galanter’s numbers and possible explanations make me want to cheer, not fret.  I spent the majority of my legal career trying to help clients/consumers move away from the “justice = trial” model of our legal system, and toward the increased use of “alternative” methods of dispute resolution.   The ABA’s own Section of Dispute Resolution is dedicated to that goal, sponsoring over 40 committees and task forces, with conferences on court-annexed ADR, and programs to help lawyers learn to be “problem solvers” — rather than merely seeking and super-sizing them.

  • Snide Aside: I’m sure that dentists fret about having too few cavities to fill since fluoride use became widespread, and some funeral directors are disappointed in the ever-increasing longevity of our population.  But, neither of those professions would have the gall to hold symposia on how to reverse such trends.

The legal profession should be helping to remove the misconception that true justice can only be achieved through a trial, rather than finding arguments to perpetuate the notion.  Too much litigation is a curse, even if having too few trials will force some trial lawyers to find other sources of income.

The ABA press release stated that other papers presented at the Symposium would be available online, but that does not yet appear to be the case.   Unless and until I see highly convincing evidence that a scarcity of trials is hurting the cause of justice, my gut reaction to litigation and trials can be seen in the following quotes (from Poetic Justice, edited by Jonathan and Andrew Roth, Nolo Press, 1994):


As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death. — Judge Learned Hand

The houses of lawyers are roofed with the skins of litigants. – -Welsh proverb


A lawsuit is a fruit-tree planted in a lawyer’s garden. — Italian proverb


The lawyer’s prayer: God grant that disputes may arise that I may live. — Spanish proverb


May you have a lawsuit in which you know you are right. — Spanish Gypsy curse


Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. — Abraham Lincoln

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