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A few years ago we covered the declining number of civil cases being filed in both state and federal courts, a trend that began in the mid-80s and continues at least through 2003, the most recent year for which statistics are available. But there is another trend which predates, and perhaps causes this decline: a forty – year drop in the percentage of cases going to trial.
“There certainly is no decline in litigation, and firms that specialize in litigation have grown tremendously over the years,” says Dennis J. Drasco, chair of the litigation group at Lum, Danzis, Drasco & Positan, LLP, in Roseland, New Jersey, and current chair of the American Bar Association’s Section of Litigation. “But the amount of cases that go to trial has declined.”
The drop has been dramatic. According to annual figures published by the Administrative Office of the United States Courts, the total number of civil trials peaked at 12,529 in 1985, falling by more than two-thirds over the next two decades to just 4,100 in 2003.
A similar trend holds in the state courts. The U.S. Department of Justice’s Bureau of Justice Statistics last spring reported that in the 75 largest counties (64 million aggregate population) the number of civil trials had gone from 22,451 in 1992 to 11,908 in 2001. When Brian J. Ostrom, Ph.D., Shauna Strickland and Paula Hannaford of the National Center for State Courts, took a look at trials in 22 states, they found that civil jury trials had gone from 1.8% of cases filed in 1976 to .6% in 2002.
This trend has some people worried about the future of our civil justice system.
“I’m not saying that every case should have a trial by any means, but surely there are more cases that should have a trial than are being tried today in our courtrooms,” says Patricia Lee Refo, a partner at Snell and Wilmer in Phoenix, Arizona and immediate past chair of the ABA’s Litigation Section.
“We lose all kinds of things when we no longer have as many juries coming together in our courthouses to help their fellow citizens resolve disputes.”
TRIMMING THE TIMELINE
Experts cite dozens of cultural, economic, statutory and procedural elements as contributing to the drop in trials. (See Reasons for Decline on page 3). One of the key factors has been the change in the litigation timeline. Instead of proceeding all the way through to trial, filings are disposed of much earlier.
“It used to be that cases settled on the eve of trial,” says Refo. “Cases now most typically settle in anticipation of some significant pretrial event – before a motion on summary judgment, for example, before a Daubert hearing, or before some other significant pretrial event that can affect the outcome of the case.”
Over the past forty years, judges have moved from presiding over tribunals to managing litigation caseload and case progress. This has been necessary because, while the number of civil filings have gone down since the eighties, over the longer term the average number of cases per judge has increased.
Taking a look at the federal courts, the number of federal civil filings has grown fivefold, from 54,615 in 1962 to 274,841 in 2002. During that same time period, the number of authorized district court judgeships only doubled – from 307 to 655 – despite Chief Justice Rehnquist’s annual pleas to Congress for more judges. Adding to the burden, the number of felony criminal case filings per judge doubled between 1982 and 2002.
Cases which do proceed through to trial have also tended to become more complex, as evidenced by the average length of trials. In 1965 , 15% of civil trials lasted four or more days, compared to 30% in 2002. All of these factors result in a heavier burden on the judges, leading them to push for an earlier disposition of cases.
To facilitate this, Rule 16 of the Federal Rules of Civil Procedure was amended in 1983 to give judges greater control over case management. As stated in the Committee Notes to the 1983 amendment:
“Empirical studies reveal that when a trial judge intervenes personally at an early stage to assume judicial control over a case and to schedule dates for completion by the parties of the principal pretrial steps, the case is disposed of by settlement or trial more efficiently and with less cost and delay than when the parties are left to their own devices.”
The effect of this rule change shows up in the percentage of cases disposed of at different stages. In 1962, the majority of federal cases were disposed of without the court taking any action, and this level held through 1985. Over the next decade that percentage dropped below 20%, where it remains to this day. During that time period, the percentage of cases disposed of after initial court action, but before pretrail, has grown from 30% to 67%.
ABANDONING THE COURTHOUSE
Another major factor is cases moving out of the courtroom into various types of alternative dispute resolution.
“There is a perception that trials don’t necessarily produce the justice they used to,” says Drasco.
One aspect of this is court-annexed mediation and arbitration programs at the federal and state levels. For federal courts, the Civil Justice Reform Act of 1990 and the Alternative Dispute Resolution Act of 1998 encouraged and then mandated that district courts implement ADR. According to Thomas J. Stipanowich, President of The DPR Institute for Dispute Resolution, 24,000 district court cases were referred to ADR in 2001, five times as many cases as went to trial. State courts have similarly encouraged the use of ADR, with Illinois, for example, sending 32,638 cases to arbitration in 2003.
But an even greater number of cases are bypassing court jurisdiction entirely, going either to other types of governmental adjudication forums or to private ADR services. For example, the American Arbitration Association receives about a quarter million filings, annually, and a similar number of workers comp administrative law cases are filed in the state of California alone. This applies to complex commercial cases, as well as disputes over employment and consumer contracts.
“There are areas of law in which there are virtually no trials at all because everything is arbitrated,” says Refo. “There is no such thing as a regular trial in a traditional construction dispute; they are all sent off into arbitration.”
While use of ADR does cut costs and speed decisions, the shift away from trials may have gone too far.
“We see a decline in routine personal injury suits primarily because obstacles have been placed in the road for plaintiffs,” says Drasco. “You want to discourage frivolous lawsuits, but tort reform issues have put some roadblocks in the way of people getting access to the courts to make damage claims.”
Refo advises that steps be taken to restore confidence in the jury system.
“We need to work to make trials less expensive, we need to make them more efficient, we need to treat our jurors better and assist them in better comprehending the evidence,” she says. “These are all steps that would further improve the justice system and give people more confidence in using trials to resolve disputes.”
Drasco agrees that confidence must be restored. Shifting justice from the public arena to private forums threatens the fabric of our legal and political structures.
“The public needs to get renewed confidence in the jury system and corporate America needs to understand that the backbone of our society is trial by jury. It is part of democracy,” says Drasco. “Writing into every consumer contract that you waive your right to trial by jury is not the best way to resolve disputes.”