The Case for Trials: Considering the Intangibles

• DOI: http://doi.org/10.1111/j.1740-1461.2004.00017.x
• Date: 01 November 2004
• Author: Paul Butler
• Published date: 01 November 2004

The Case for Trials:

Considering the Intangibles

Paul Butler*

In the United States, trials perform important functions that are difficult to

quantify. Trials, for example, educate Americans about each other, and the

law. They are a vivid, practical example of the faith in democracy that lies

at the core of the American experiment. It is worrisome that trials are

declining as trial arbiters—jurors and judges—become more diverse. The

rejection of trials may also evidence a new and troubling cultural prefer-

ence for compromise over standing on principles. The article recommends

that trials be encouraged, including by reducing the costs of losing and by

evaluating proposed laws and policies for the effect that they would have

on trials.

I. INTRODUCTION: THE TRIAL JUDGE WHO HATED TRIALS

I was a law clerk for a trial judge who hated trials. I describe her as a trial judge for

the irony, and because conducting trials was part of her job description. In reality,

however, a “coerced settlement” or “enter-my-courtroom-and-I’ll-make-you-pay” or

“anti-trial” judge would be a more accurate moniker.1This jurist was happiest in her

business suit, at her desk in chambers, in conference with trial attorneys, cajoling

and imploring and yelling. She was never thrilled to find herself draped in a robe,

in a courtroom, sitting on high.

The judge’s distaste for trials was a bit about efficiency, but not much. She was

a liberal Democrat who was happy to expend the government’s resources if she

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©2004 American Bar Association. All rights reserved.

*Professor of Law, The George Washington University Law School, 2000 H Street, NW, Washington, DC

20052; e-mail pbutler@law.gwu.edu.

1See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv.

L. Rev. 924, 925–26, 995–1003 (2000) (discussing trial judges who espouse the viewpoint that settlements are

preferable to trials).

Journal of Empirical Legal Studies

Volume 1, Issue 3, 627–636, November 2004