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


  1. Isn’t it a little unfair to compare a trial to a root canal or death? The latter are outcomes to be avoided at all costs – they are unequivocally negative. Trials are not necessarily so. Yes, they are crapshoots, but what happened to the principled stand? ADR is great for some disputes, but what about the case where one side is completely wrong on the facts and the law, and refuses to see that? Some cases are appropriate for trial, and those cases are harder and harder to actually get to trial. I’m thinking in particular of the nuisance suit – employment or other fact-intensive allegations hard to defeat on summary judgment. If the defendant is a deep pocket, these suits often get settled instead of going to trial, even though the plaintiff deserves nothing. Those settlements are the cost of the current trial-unfriendly system.

    Comment by brett — January 5, 2004 @ 2:01 pm

  2. I don’t remember arguing that every trial is bad and every settlement is good. I’m strongly against nuisance suits (personally won the first case in our region imposing major financial penalties for a frivolous claim in a personal injury case), and I believe courts are far more likely now than 20 years ago to declare a case to be frivolous. Furthermore, the study says that summary judgments have also increased.
    There is nothing happening now that prevents a litigant from taking a “principled stand.” But, thankfully, clients have learned that there can often be better ways to “win” or to cut their losses than by betting the farm in what you call “crapshoots.”

    Comment by David Giacalone — January 5, 2004 @ 2:29 pm

  3. I agree, betting the farm on a trial is asking for trouble. I just think that maybe the shadow that you reference is getting a little small. There is a place for justice in civil litigation, and it’s not to be found in ADR. There’s also the fact that our common-law system relies on precedent, which ADR doesn’t supply. We’re fine now, but what happens in 50 years? I think ADR has its place, but that people should not be discouraged from going to trial when they are in the right. In my jurisdiction, every plaintiff now has to certify that he has gone through the ADR process before getting a trial date. At some point, ADR, if pushed too hard, begins to infringe on people’s right to have their day in court.

    Comment by brett — January 5, 2004 @ 2:42 pm

  4. I appreciate this discussion, Brett. Does every plaintiff in your jurisdiction have to “go through the ADR process” or merely certify that they’ve had it explained to them, with the option to skip ADR?

    As I argued back in the Prairielaw.com column Counselors Oughtta Counsel (Not Conceal) (December 7, 2000), I believe every lawyer, as fiduciary and counselor, has an obligation to discuss in good faith the option of using mediation or other ADR, rather than litigation. Because the vast majority of lawyers failed to do that — and many actively discouraged ADR if the client asked about it — some jurisdictions have wisely required that litigants must all be given the option.

    [update:] Rule 2.1 [Advisor] of the Colorado Rules of Professional Conduct, adds the following sentence to the ABA’s Model Rule 2.1: “In a matter involving or expected to involve litigation, a lawyer should advise the client of alternative forms of dispute resolution that might reasonably be pursued to attempt to resolve the legal dispute or to reach the legal objective sought.” Also, Comment 5 to Colorado 2.1 states, “Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”

    I think we are a very long way from the collapse of the common law system due to the lack of trial. Lawyers consider the possible evolution of the law in their settlement negotiations. The Study here notes that there were about 19,000 jury trials in 22 states where info was available for 2001. In general, I’m still with Abraham Lincoln — when possible, settle.

    Comment by David Giacalone — January 5, 2004 @ 5:37 pm

  5. I agree wholeheartedly that lawyers should advise clients of the ADR options. In my juris., (Multnomah Co., Oregon) every party is required to either mediate, arbitrate, or do a judicial settlement conference. It’s an SLR. And I certainly agree that one should settle where possible; 99 times out of 100, it’s the rational course of action.

    I just worry about ADR, arbitration in particular. I hate seeing the rules of evidence go out the window; they’re there for a reason. Arbitrators always say, “I’ll allow it”, when presented with hearsay or unauthenticated documents. I just don’t trust that they can discount evidence of questionable provenance. The old you-can’t-unring-a-bell line goes for arbitrators, too. And when they screw up, it’s so hard to object unless they get something so wrong that it’s blatantly obvious. There’s a reason that we have appellate courts; if the rules for appealing a judgment at trial were the same as the rules for objecting to an arbitration, there would never be a successful appeal. By enacting such tough rules about objections, we’re assuming that arbitrators get it right more often than judges or juries, which I don’t think is the case.

    I suppose by this time ADR is an unstoppable trend, and probably the best thing, given society’s unwillingness to fund the court system to the levels it really requires. I just hope we don’t rue the day that we gave up on trials.

    Comment by brett — January 5, 2004 @ 7:07 pm

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