So What? Possible Implications of the Vanishing Trial Phenomenon

• Author: Stephan Landsman
• Published date: 01 November 2004
• DOI: http://doi.org/10.1111/j.1740-1461.2004.00028.x
• Date: 01 November 2004

So What? Possible Implications of

the Vanishing Trial Phenomenon

Stephan Landsman*

I. INTRODUCTION

The data assembled in this Symposium leave little doubt that trial-like events, whether

in the civil courtroom, criminal courtroom, bankruptcy court, or arbitrator’s hearing

room, have dramatically declined. Procedures that result in pretrial disposition have

been used with increasing frequency while those that lead to trial have been utilized

less often. The shift to pretrial disposition has heightened emphasis on paper-based

decision making rather than reliance on the examination of live witnesses in open

court. Juries are afforded ever fewer opportunities to provide the community’s assess-

ment of the merits of disputes.

The lawyers who once conceived of their professional function as the trial of

cases to resolve disputes now find themselves mostly doing other things. The foren-

sic skills required to mount trials have been eroded as lawyers are given precious few

opportunities to practice the arts of the courtroom. Young lawyers, in particular, find

it increasingly difficult to get any sort of trial experience save, perhaps, in state crim-

inal courts where practice is likely to be unpolished and not serve as much of a tem-

plate for anything but unpremeditated, shoot-from-the-hip, bare-knuckle litigating.

Lacking in background and confidence, lawyers often turn to “trial consultants” to

provide them the sorts of insights once supplied by experience or the advice of senior

mentors.

The lawyers who are elevated to the bench come to judging with less trial expe-

rience and are afforded far fewer chances to hone their trial skills than in earlier

generations. A federal judge in 1963 had 39 trial events in an average year. His or

her 2002 counterpart had one-third as many trial experiences.1The lack of trial work

undermines judicial confidence in the trial mechanism. When this is coupled with

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©2004 American Bar Association. All rights reserved.

*DePaul University, College of Law, 25 E. Jackson Blvd., Chicago, IL 60604–2287; e-mail

slandsma@depaul.edu.

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

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

Journal of Empirical Legal Studies

Volume 1, Issue 3, 973–984, November 2004