The hundred-year decline of trials and the thirty years war.

• Author: Galanter, Marc
• Position: The Civil Trial: Adaptation and Alternatives

Although it defies popular images of the ubiquity of trials, an abundance of data shows that the number of trials--federal and state, civil and criminal, jury and bench--is declining. (1) The shrinking number of trials is particularly striking because virtually everything else in the legal world is growing--the population of lawyers, the number of cases, expenditures on law, the amount of regulation, the volume of authoritative legal material, and not least the place of law, lawyers, and courts in public consciousness. (2) But, curiously, the image of law in public consciousness is centered on the trial. The media's obsession with trials, fictional and otherwise, combines with myths about excessive litigation to make the decline invisible to the public and, in large measure, to legal professionals.

The decline may usefully be divided into two components: a long-term and gradual decline in the portion of cases that terminate in trial and a steep drop in the absolute number of trials during the past twenty years.

1. THE LONG-TERM DECLINE IN THE PORTION OF CASES THAT TERMINATE IN TRIAL

   Here are two figures that display the long-term decline, at least its more recent part, in trials in state and federal courts:

   There is evidence to suggest that the steady downward trend displayed in Figures 1 and 2 has been in progress for more than a century, marking a long historic movement away from trial as a mode of disposing of civil cases. (5) In his study of litigation in the St. Louis Circuit Court from 1820 to 1970, Wayne McIntosh observes:

   [FIGURES 1-2 OMITTED]

   During the first 100 years of the study period, the percentage of cases culminating in a contested hearing or trial remained fairly steady (around 25 to 30 percent). After 1925, though, the average skirted downward into the 15 percent range. [Figures] ... reveal that the shift from adjudication to bargaining is ... wholesale and not restricted to any one issue. (6) Stephen Daniels studied dispositions in circuit and county courts in two downstate Illinois counties for the period from 1870 to 1960. He found that contested trial as a means of disposition had fallen in each of these courts, both in civil and in criminal cases. (7) For example, in Menard County Circuit Court, contested trials fell from 13% of civil dispositions in the 1870-1885 period to 8% in the 1940-1960 period; in Menard County Court, the decrease was from 13% to 6%. (8) In Bond County, for the same periods, the decrease in civil trials was from 16% to 8% in circuit court and from 20% to 5% in county court. (9) Two Massachusetts counties showed a similar decline from 1865, when 53.4% of civil cases were contested, to 1955, when just 15.7% were contested. (10) In a study of trial courts in two California counties from 1890 to 1970, Lawrence Friedman and Robert Percival found that trials in urban Alameda County dropped from 36% of the sampled civil cases in 1890 to 16.1% in 1970, and, in rural San Benito County, from 25.8% of sampled civil cases in 1890 to 11.7% in 1970. (11) Studying civil litigation in Los Angeles Superior Court, Molly Selvin and Patricia Ebener compared samples of cases from the era before World War Two (1915-1940) and the postwar era (1950-1979).

   We ... observed changes in the method by which cases are terminated. More cases were disposed of by the court in the earlier sample than later, and 16 percent of these cases were tried. In the cases filed since 1950 more settled or were dismissed by the plaintiff. Fewer had court dispositions and very few were tried. (12) The long decline of trials is visible in federal as well as state courts in the years before the 1962 starting point of the year-to-year figures presented in Figure 2. In the fiscal year ending two months before the Federal Rules of Civil Procedure took effect in 1938, 19.9% of cases terminated by trial. (13) In 1952, the trial rate for all civil cases was 12.1%. (14) In 2003, only 1.7% of civil terminations occurred during or after trial. (15)

2. THE RECENT ABSOLUTE DECLINE IN TRIAL ACTIVITY IN THE COURTS

   Although the percentage of cases reaching trial in almost all courts has been falling for a long time, growing caseloads meant that the absolute number of trials was stable or even increasing into the 1980s. But in the past twenty years, the movement away from trials has intensified and accelerated, producing a dramatic drop in the absolute number of trials. In spite of mounting caseloads, the absolute number of trials has been falling, as displayed in Figure 3.

   [FIGURE 3 OMITTED]

   The recent decline has been precipitous in the federal courts, where the number of civil trials fell by two-thirds from a high of 12,570 in 1985 to 4206 in 2003. (17) In the state courts, starting from a smaller percentage of trials, the decline has been more gradual, but seems to have accelerated recently. A convenient summary comparison of the scope of this decline is given in Table 1, which compares the numbers of trials in 1992, 1996, and 2001, the three years for which there is data available for the greatest number of courts. (18)

   We can see from Table 1 that during this nine-year period, the number of civil trials declined in both federal and state courts, perhaps a bit more rapidly in the state courts. When types of suits are distinguished, one sees that the declines in contract and bankruptcy trials were steeper than that in tort cases. Table 2 shows that there were also declines in the number of criminal trials. Here it is the federal courts where the decline was steeper, with the number of jury trials falling by more than half in this period. Although there are differences in the slope and timing of the decline, the generality and scale of the decline suggest that factors are at play that are not peculiar to federal (or state) courts or to particular types of cases. It appears that the trial as an institutional practice is undergoing a major change.

3. WHAT IS CAUSING THE DECLINE OF TRIALS?

   Observers have proposed a number of plausible explanations for the decline of trials. A list of candidates would include at least the following:

   1. The mix of cases being filed has changed, with relatively fewer in the most trial-prone categories.

   2. Courts increasingly lack the resources to hold many trials.

   3. Cases are more complex and more costly to carry to trial (due to the elaboration of procedure and the higher costs of lawyers and experts).

   4. There is a longer wait to get to trial.

   5. Modern procedure facilitates settlement by providing information and cost incentives.

   6. Defendant corporations are more averse to the risk of trial due in large measure to exaggerated estimations of plaintiff success and of the likelihood of punitive damages awards.

   7. Corporate and governmental parties have embraced alternative dispute resolution (ADR) as preferable to courts and/or trials in many sorts of cases.

   8. In criminal cases, guidelines and determinate sentencing have raised the cost of trial for defendants.

   9. Courts have embraced judicial management, which supplies greater incentives and opportunities for judges to dissuade parties from going to trial.

   10. Judges' conception of their role has shifted from one of presiding at trials to one of resolving disputes.

   11. Judges increasingly approve of and encourage ADR.

   12. ADR forums have developed and proliferated.

   The distinctions between these accounts are not always sharp. In many instances the factors overlap and reinforce one another. We could separate out several clusters of related factors, such as changes in the demand for trials (a, d, e, f, g, h), changes in available resources (b, c), changes in the character of the process (c, d, e, i), changes in judicial ideology and practice (i, j, k), changes in the strategies and tactics of litigants (f, g, h), and the appearance on the scene of ADR (g, k, l).

   What is the relative contribution of each of these factors to the recent sharp drop in the number of trials? Which of these factors seem most responsible for the century-long decline in the portion of matters going to trial? We should not assume that the answers to these questions are the same. It is possible that the explanation of each of these "declines" involves a distinct set of factors.

   My surmise is that the long-term decline reflects resource constraints in that the supply of courts is not designed to provide trials in all cases. Historically, as society and the economy have grown and an increasing portion of the population has gained access to the courts (whose users now include women, racial minorities, prisoners, and other once legally quiescent groups), the potential for invocation of the courts has multiplied more rapidly than the size of the judicial "plant." Fewer cases that come to court can get full-blown adjudication. (And our notion of full-blown adjudication has become more refined and elaborate. (21)) The available "plant" only allows courts to provide trials for a smaller and smaller minority of cases. As waiting times, cost, and uncertainty increase, settlement becomes more attractive. Increasingly, courts supply signals, markers, and sufficient background threats to induce resolution (or abandonment) of claims. This shift is facilitated by the increased number of lawyers who can read judicial signals and devise bargains. The promise of full-blown adjudication in a public forum--a "day in court"--is increasingly redeemed by "bargaining in the shadow of the law." (22) So we can understand the long-term decline of trials as the result of a conjunction of a restricted supply of judicial resources with the generation of signals and threats that manage to stretch the small supply of adjudication to meet increased demand.

   But these factors resource constraints, increased cost and complexity, improved signaling, more lawyers--do not account for the sudden and dramatic decrease in trials in the last twenty years. In the federal courts, for example, the high point in the...