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As Trials “Vanish,” Alternatives Play a Dominant Role in Dispute Resolution

by Paula Young
September 2004 Paula Young
For nearly twenty years, I described myself as a litigator, but harbored an unspoken insecurity that I could not call myself a trial lawyer. “Huh?” you say. Let me explain. For over ten years, I served as general counsel to the receiver of the then-largest property and casualty insurance insolvency in U.S. history. During that time, I successfully “litigated” nearly $60 million in claims against reinsurers, but actually participated in one trial involving those claims. I appeared in many hearings before the supervising judge and before special masters whom the court had appointed to manage discovery and pre-trial motions. Even in the disputed claims context, in which we litigated with policyholders and third-party claimants, I participated in about 50 informal hearings before a claims referee. These hearings resembled informal arbitrations, not trials.

We resolved the remaining claims by negotiation or mediation. Even outside this insurance insolvency context, I resolved most of my clients’ disputes by negotiation, mediation, or arbitration.

Steep Decline in Trial Disposition of Suits

A recently published study finally puts my insecurities at rest. You see, I am not alone. Most litigators never see a jury or try a case to a judge. Most resolve cases long before the scheduled trial date. The statistics are quite eye opening. The study considered jury and bench trials in federal courts. In 1962, judges and juries resolved 5,802 civil cases, defined as tort, contract, prisoner, civil rights, labor, and intellectual property cases. These trials constituted about 11.5 percent of the dispositions of the 50,320 cases filed with the courts. By 2002, parties had increased civil case filings to nearly 259,000 – an increase of 146 percent over 1962 filings-- but the dispositions by trial fell to 1.8 percent. See Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts 8-19, http://www.abanet.org/litigation .

The criminal trial picture looks similar. In 1962, trials disposed of 5,097 cases or 15 percent of all indictments. In 2002, the number fell to 3,574 criminal trials or 5 percent of all indictments. During this period, the number of prosecutions doubled from 33,110 in 1962 to 76,827 in 2002. Id. at 48-49.

These statistics, taken from data compiled by the Administrative Office of the United States Courts, show that federal judges tried fewer cases in 2002 than they did in 1962. Judge Patrick Higginbotham reported, in an article published before Galanter published the Vanishing Trial report, that in 2001 “each United States District Court judge presided over an average of just over fourteen trials a year. Over half of these trials lasted three days or less in length and 94% were concluded in under ten days.” See Patrick E. Higginbothan, Judge Robert A. Ainsworth, Jr. Memorial Lecture, Loyola University School of Law: So Why Do We Call Them Trial Courts?, 55 S.M.U. L. Rev. 1405, 1405-06 (2002). In other words, most judges spent less than 42 days presiding over trials. Each judge handled six “other contested matters,” but taken together, the traditional trials and the “other contested matters” averaged a day or less in length. Id. at 1406. In 1962, the average federal judge conducted 39 trials each year.

Higginbotham notes that most of the filings in federal court concern prisoner rights cases, few of which ever go to trial. The Vanishing Trial study confirms this statement. In 2002, prisoners filed nearly 57,000 cases, but trials disposed of less than 0.9 percent of them. Between 1992 and 2002, prisoners’ filings exceeded in number tort (49,588 cases) and contract (38,085 cases) filings. These statistics suggest to me and to many other scholars that the caseload crisis is one of pre-trial management and disposition, not one of limited trial resources. Higginbotham, for instance, reports that his court – the Fifth Circuit – employs about fifty lawyers, who work primarily to dispose of the prisoner case docket. Higginbotham, supra at 1422.

State court statistics give a similar, but yet incomplete, picture. Based on data provided by the National Center for State Courts for 22 states, jury trials fell by 28 percent during the period of 1976 through 2002. Trials disposed of .06 percent of total civil dispositions. The rate of bench trials has also dropped in most of the reporting states. See Patricia L. Refo, The Vanishing Trial, 30-2 Litig. 2, 3 (Winter 2004); Hope V. Samborn, The Vanishing Trial: More and More Cases are Settled, Mediated or Arbitrated Without a Public Resolution. Will the Trend Harm the Justice System?, 88 ABA J. 24, 27 (Oct. 2002).

People looking at the shift in dispute resolution processes quickly point out that while the decline in the number of trials has been dramatic, even in the “good old days,” most cases settled before trial. They suggest we should not be too nostalgic about a process that disputants have not warmly embraced any time during the last 30 years. Some people, including judges, argue that a trial represents the failure on the part of many people to resolve the dispute in a more timely, cost efficient, and fair way.

Reasons for the Decline

Scholars, practitioners, and judges have posed several reasons for the decline in the number of trials:

  • Judges are trained to “clear dockets” quickly. One writer notes: “The sheer time it takes to manage these large caseloads may place such pressure on court resources that there simply isn’t the time to try cases...In many jurisdictions, judges are evaluated based on their case disposition rates, an evaluation system that is uniquely hostile to trial dispositions because, by definition, they take longer.” Refo, supra at 3.
  • Judges are managing their dockets by creating scheduling orders that encourage an earlier exchange of information that parties need to assess the merits of their cases. Earlier disclosures, especially without burdensome discovery procedures, encourage earlier settlements. See Hon. John Coselli, Session B6: Improving the Administration of Justice Through Effective Trial and Case Management: The Collaborative Scheduling Conference, ABA Section of Dispute Resolution Conference, March 20-22, 2003.
  • Discovery has become prohibitively expensive for most litigants and continues to be one of the biggest costs of litigation. Even in 1978, it consumed nearly 17 percent of litigators’ time spent on trial preparation. Higginbotham, supra at 1417. I would guess that discovery takes up even more lawyer time some 30 years later. Judges do little to control discovery abuses. In fact, the magistrate judge system exists for the “care and nurture” of discovery. Id. Attorney billing models create incentives to conduct discovery even into tangential issues or for documents and other evidence a court is not likely to allow admitted at trial. See Jeffrey S. Leon, Rethinking How We Litigate to Ensure We Continue to Litigate, 15-5 The Advocate’s Brief 1 (Jan./Feb. 2004), http://www.advsoc.on.ca/publications/pdf/eBrief/E-BRIEF%20-%20Jan-Feb%202004.pdf .
  • The length of civil trials has increased, also increasing the cost of litigation. Refo, supra at 3.
  • Lawyers, who have little trial experience, are afraid to try cases. Leon, supra at 2; Refo, supra at 4.
  • The 1986 decisions in the Celotex trilogy reinforce a more active role by judges to dispose of cases by summary judgment long before trial. (Higginbotham’s article suggests, however, that summary dispositions have remained fairly constant from 1981 to 2000, running between about 0.18 percent to and 0.14 percent of dispositions. Higginbotham, supra at 1421, Chart II.)
  • The Sentencing Reform Act of 1984 and the adoption of sentencing guidelines and minimum sentencing in 1986 and 1988 made criminal trials far more risky for defendants.
  • Corporate America perceives trials as expensive, slow, and risky. Corporations increasingly rely on pre-dispute arbitration clauses to force employees, suppliers, and customers into arbitration. From 1989 to 1999, the American Arbitration Association reports that arbitrations conducted through it rose from 55,520 to 144,000. These statistics, however, do not explain the drop in trial dispositions. Most of the arbitrated disputes never get filed with a court, unless the defendant seeks to enforce an arbitration clause. Higginbotham, supra at 1414. See also http://www.arbitration-forum.com/articles/emprcl_study_04/copy.asp (reporting that 78% of trial and business attorneys find arbitration faster than lawsuits; 56% of trial attorneys find arbitration less expensive than lawsuits). However, these statistics suggest that corporate managers who find themselves in court will try to avoid the risks of trial, if possible.
  • In 1999, Congress required federal courts to design and use ADR plans to dispose of cases. The plans are working to divert cases to ADR processes.
  • For instance, in the United States District Court for the Eastern District of Missouri, mediators helped parties resolve 51 percent of referred cases in 1999, 48 percent in 2000, and 57 percent in 2001. See http://www.moed.uscourts.gov/ADR/ADR%20Satisfaction%20Survey.pdf . Several state circuit courts in Illinois report mediated settlement rates of 48 to 62 percent. See http://www.caadrs.org/statistics/reports.htm .
  • Finally, unassisted negotiations resolve the majority of cases before trial. Negotiation plays a dominant role even though most lawyers have no, or less than five hours of formal training in negotiation skills and strategies. See Bobbi McAdoo & Art Hinshaw, The Challenge of Institutionalizing Alternative Dispute Resolution: Attorney Perspectives on the Effect of Rule 17 on Civil Litigation in Missouri, 67 Mo. L. Rev. 473, 486-87 at Tables 4 & 5 (2002) (Reporting that 86 percent of Missouri attorneys responding to a Missouri Supreme Court sponsored survey had no (62 percent) or less than 5 hours (24 percent) of training in negotiation in 1997. Only 5 percent of the Missouri attorneys had more than 20 hours of training.)

Other scholars will continue the debate about the implications this “cultural shift” will cause to “justice,” participation by citizens in basic institutions of democracy, and our system of stare decisis. I simply discuss the topic here to suggest, again, that the most valuable skills a lawyer can possess are good negotiation skills and the ability to effectively represent clients in mediation, arbitration, and other dispute resolution processes. Two new books published by the National Institute for Trial Advocacy (perhaps itself an irony) provide excellent advice to attorneys on these topics and skills. See Harold I. Abramson, Mediation Representation: Advocating in a Problem-Solving Process (NITA 2004) and John W. Cooley & Steven Lubet, Arbitration Advocacy (NITA 2003).

Biography


Paula M. Young is an associate professor at the Appalachian School of Law located in Virginia teaching negotiation, certified civil mediation, arbitration, and dispute resolution system design.  She received in 2003 a LL.M. in Dispute Resolution from the top ranked program in the U.S.   She has over 1400 hours of alternative dispute resolution training.  Missouri and Virginia have recognized her as a mediator qualified to handle court-referred cases.



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