Foreword: Pretrial Litigation, Dispute Resolution, and the Rarity of Trial

• Publication year: 2022

40 Creighton L. Rev. 651. FOREWORD: PRETRIAL LITIGATION, DISPUTE RESOLUTION, AND THE RARITY OF TRIAL

Creighton Law Review

Vol. 40

ARTHUR PEARLSTEIN(fn*)

In modern American civil law practice, the very term "pretrial litigation" seems almost incongruous. The truth of the matter is, as reflected in the recently popular label "the vanishing trial,"(fn1) very little litigation actually involves a trial at all. In federal courts, less than two percent of civil lawsuits result in a trial.(fn2) There is substantial evidence that the trend of dramatic declines in relative numbers of trials has been mirrored in state courts as well.(fn3) In the very unscientific sample of my own fifteen years as a litigator in a variety of state and federal courts, I can safely say that more than ninety-nine percent of my litigation time was spent in "pretrial" work and less than one percent in trial. For good or for ill, and opinions among practicing lawyers and the legal academy vary on that judgment, "litigation" should no more be thought of as "pretrial" than medicine should be considered "pre-surgery" or defense, "prewar."

It is important to be clear: the actual rate of litigation, as measured by the relative numbers of lawsuits being filed, has not declined in recent years.(fn4) The implication of this, in light of the decrease in trials, is that the basket of processes and tactics known as pretrial litigation is now of utmost importance. It is, for most lawyers who deal with lawsuits, and for most judges in civil matters, where the action is. As one trial lawyer turned professor has noted, "Trial lawyers were all but extinct by the late 1980s. . . . They had been replaced by a group of people calling themselves litigators."(fn5)

Pretrial litigation involves such varied objectives and procedures as discovery to gather information, dispositive motions practice to weed out baseless claims, and pretrial conferences to schedule and plan the course of litigation. Increasingly, therefore, the work of judges in our civil system involves the bureaucratic role of "case management." This has been accompanied by an enormous growth in the size of the judiciary over the second half of the twentieth century that continues to this day, along with rapidly increasing budgets for courts and supporting administrative services.(fn6) Not...