Examining Trial Trends in State Courts: 1976–2002

• Author: Shauna M. Strickland,Brian J. Ostrom,Paula L. Hannaford‐Agor
• DOI: http://doi.org/10.1111/j.1740-1461.2004.00023.x
• Date: 01 November 2004
• Published date: 01 November 2004

Examining Trial Trends in State Courts:

1976–2002

Brian J. Ostrom, Shauna M. Strickland, and

Paula L. Hannaford-Agor*

Recent examinations of federal litigation trends show that the use of trials

by the federal courts is declining. This knowledge has invariably raised the

question of whether the use of trials in state courts is also declining. Unfor-

tunately, the ability to conduct parallel examinations of state court litiga-

tion trends has been hampered by the lack of available state court

disposition data. In this article we introduce the “State Court Disposition

Trends” database and analyze, for the first time, long-term trial trends in

the state courts. The present analysis examines 27-year trends of trials and

trial rates for criminal, civil, and felony cases, and 11-year trends of trials

and trial rates for general civil cases. We find that despite substantial growth

in the number of case dispositions, there has been a decrease, often sig-

nificant, in the use of trials by state courts.

I. INTRODUCTION

Empirical light shines brightest on the federal courts. Long-term data trends have

been closely examined and clearly demonstrate the sharp decline in trials for most

federal court case types.1Extensive, readily available data sources are the primary

reason that we know a great deal about litigation trends in the federal courts. This

knowledge of federal court trends serves to pique our curiosity about the state court

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©2004 American Bar Association. All rights reserved.

*Ostrom is Principal Court Research Consultant; Strickland is Court Research Analyst; Hannaford-Agor is

Principal Court Research Consultant. All authors are with the Research Division of the National Center for

State Courts. Address correspondence to Shauna Strickland, National Center for State Courts, 300 Newport

Ave., Williamsburg, VA 23185-4147; e-mail sstrickland@ncsc.dni.us.

The authors thank Marc Galanter and Stephan Landsman for initiating the “Vanishing Trials Project,”

Ted Eisenberg and an anonymous referee for their thoughtful comments and suggestions, and the staff

members of the state administrative offices of the courts for their participation in data collection and verifi-

cation. Any errors or omissions remain our own.

1Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State

Courts, 1 J. of Empirical Legal Stud. 459 (2004).

Journal of Empirical Legal Studies

Volume 1, Issue 3, 755–782, November 2004

system and raises the obvious question of whether a parallel trend is occurring in the

state courts, an empirical question many states still cannot answer. Determining

whether trends in state courts, where the vast majority of litigation occurs,2match

those observed at the federal level is often all but impossible. In many respects, basic

data limitations have impeded our ability to determine national trends regarding the

work of the state courts. With this article, we introduce the results from a major new

data collection initiative at the National Center for State Courts (NCSC) designed to

ascertain trial trends in state general jurisdiction courts. The central finding is that,

despite substantial increases in the number of dispositions, the number and rate of

jury trials has declined, often significantly, during the period 1976–2002 in almost

all states included in the analysis.

Legal scholar Daniel Meador calls the state-federal line “the great divide in the

American legal landscape.”3From an analytical point of view, the defining feature of

that divide has been the ability to build an empirical profile of court business. The

perennial difficulty in compiling accurate and comparable data at the state level can

in large measure be pinned on the fact that there are 50 states with at least 50 dif-

ferent ways of doing business and 50 different levels of commitment to data compi-

lation. Numerous national initiatives now underway seek to improve data quality at

the state level, but trend studies—such as an historical examination of trial rates—

still require special data-collection efforts.

In cooperation with the Vanishing Trials Project (sponsored by the Civil Justice

Initiatives Task Force of the American Bar Association’s Section of Litigation), the

Court Statistics Project (CSP) at the NCSC has compiled the most extensive infor-

mation currently available on the trend of trials held in state general jurisdiction

courts: the “State Court Disposition Trends”database.4The data available from nearly

half the states cover the 27-year period from 1976–2002. Most information is avail-

able only for broad case classifications (total criminal and total civil), although finer

detail (felony, tort, contract, and real property rights) has been captured when avail-

able. Moreover, this new database contains information on the complete manner of

disposition (i.e., both trial and nontrial case outcomes). Creation of this database

involved a thorough search and examination of archival sources and careful docu-

mentation of issues related to data accuracy and comparability.

In this article, we take a first look at the long-term trend in the number and

rate of trials for a large sample of state court systems using the “State Court Dispo-

sition Trends” database. Our goal in examining the empirical record is to assess the

756 Trial Trends in State Courts: 1976–2002

2Brian Ostrom, Neal Kauder & Neil LaFountain, Examining the Work of State Courts, 2002: A National Per-

spective from the Court Statistics Project (National Center for State Courts 2003).

3Daniel J. Meador, American Courts 1 (West Publishing Co. 1991).

4Data from the “State Court Disposition Trends” database can be found on the Court Statistics page of the

NCSC website at /www.ncsconline.org/D_Research/csp/CSP_Main_Page.html>.