The New York Times reports on the drop in cases actually going to trial. In 1962, 11.5 percent of federal civil cases went to trial. That number is now 1.8 percent.
Adam Liptak writes (excerpt):
“This is a cultural shift of enormous significance,” said Arthur Miller, a law professor at Harvard.
Opinions vary on whether the shift is a positive one. Negotiated settlements may satisfy both sides in a way a win-or-lose trial cannot, and pretrial dismissals of cases by judges may avoid needless trials of frivolous claims. Both of these alternatives to trial are less cumbersome, less expensive and more efficient.
On the other hand, some studies suggest that individuals suing companies fare considerably better before juries than they do in settlements and before judges, meaning that a decline in the number of trials may hurt plaintiffs with valid claims.
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“There is a striking philosophical, ideologically driven view that is hostile to trials,” said Judge Patrick E. Higginbotham of the United States Court of Appeals for the Fifth Circuit, in New Orleans. He attributed the view to those who prefer mediation to adjudication.
Others view the trend as progress.
“If a trial occurs,” said Samuel R. Gross, a law professor at the University of Michigan, “it usually means a whole lot of efforts by a whole lot of people have failed.”
Paul Butler, a law professor at George Washington University, disagreed. He said the loss of this form of dispute resolution was a devastating one. “Nobody does trials like Americans,” Professor Butler said. “We made it an art form. It’s almost as fundamental a part of our culture as jazz or rock ‘n’ roll.”
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The sheer complexity and cost of litigation, others say, make settlements more attractive. The cost of a trial can exceed the cost of a settlement, giving defendants an incentive to settle. Plaintiffs and their lawyers, on the other hand, often prefer the certainty of a settlement to the possibility of recovering nothing at trial.
“The striking problem,” Professor Gross said, “is that we have generated a procedure that is way too expensive if actually employed.”