Your day in court.

Surprising article in the NY Times: a new study indicates that fewer and fewer lawsuits ever make it to trial. In 1962, 11.5% of all civil cases in federal court went to trial; forty years later, only 1.8% went to trial. Sure, there are five times as many lawsuits today as in 1962 - but the absolute number of civil trials in federal court has dropped, too: from a high in 1985 of 12,529, only 4,569 civil trials were held.

Similarly, the number of criminal trials had dropped, too: less than 5% of federal criminal prosecutions ended up at trial, while in 1962, 15% went to trail. Again, there are more prosecutions than forty years ago - twice as many, but the number of trials dropped to 3,574 lst year, from over 5,000 in 1962.

And judges' workloads have changed during that forty-year span: in 1962, federal trial judges averaged 39 trials a year, both criminal and civil. Last year, they averaged 13 trials - but had increased responsibilities regarding discovery, ruling on pretrial motions, and supervising settlements and plea bargains.

State court data are less complete, but the patterns appear to be consistent with what's seen in the federal courts.

What's the reason for the shift? For criminal cases, the sentencing laws are such that someone who goes to trial faces longer sentences than someone who takes a plea bargain, so fewer defendants insist on a trial. On the civil side, it's not so clear: Part of it surely is due to the increasing cost of litigation: when the cost of a trial exceeds the cost of settlement, defendants often choose to settle. One law school professor noted, "The striking problem is that we have generated a procedure that is way too expensive if actually employed." And part of the reduction may be due to increased use of arbitration or other non-judicial means of resolving dispute, so that a lot of certain types of cases have gone to other forums and thus never make it to the court system. And part of it may be "non-trial adjudications" - decisions based only on papers submitted by the parties - which now account for the final disposal of half of all civil cases, up from 32% in 1970.

This last point can be troubling, another professor noted. "We speak glowingly of letting people have their day in court. Now they have their day on papers."


The chief judge of the Federal District Court in Boston says that this "is nothing less than the passing of the common law adversarial system that is uniquely American." Others suggest that the shift to more negotiated settlements means that both sides end up with something in a way that a win-or-lose-all trial doesn't allow, and that pretrial determination of cases, based only on paper submissions, prevents frivolous cases from going to trial.