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Professor of Law
The Vanishing Trial:
Over the past generation or more, the legal world has been growing vigorously. On almost any measure--the number of lawyers, the amount spent on law, the amount of authoritative legal material, the size of the legal literature, the prominence of law in public consciousness--law has flourished and grown. It seems curious then to find a contrary pattern in one central legal phenomenon, indeed one that lies at the very heart of our image of our system--trials.
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. There was a major shift in the subject matter of trials from a majority of tort cases to a majority of civil rights and prisoner cases. On the criminal side, some 15% of criminal defendants were tried in 1962, but less than 5% in 2002. Again, in spite of rising numbers of defendants, the absolute number of trials was 30% lower in 2002 than in 1962.
In state courts, the data is less comprehensive, but the overall trends appear comparable. In both civil and criminal cases, the percentage of dispositions by trial has fell from 1976-2001. In states for which data was available over this period, jury trials fell from 2% of civil dispositions to 1% and from 15% to 5% of criminal dispositions. The absolute number of jury trials has been falling: in the courts of general jurisdiction in 22 states, there were 25,452 jury trials in 1976 and 18,923 jury trials in 2001, a 28% drop.
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.
The consequences of the decline in trials are even more difficult to fathom than its causes. 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. The number of disputes increases and the amount of legal doctrine proliferates, but they are connected by means other than trial. 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.