The Vanishing Civil Trial

A recent study shows that nearly all federal cases settle before trial.  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.  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 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.”  

In other words, most judges spent less than forty-two 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.  In 1962, the average federal judge conducted 39 trials each year.

State court statistics give a similar, but yet incomplete, picture.  Based on data provided by the National Center for State Courts for 22 states, civil jury trials fell by 33 percent during the period of 1976 through 2002.  Bench trials fell to 15.2 percent of total civil dispositions in 2002.  

Scholars and commentators are not quite sure what to make of the data.  Some suggest that increasing use of ADR, especially mediation, explains the drop in the number of trials. 

What the data says to me is that lawyers play a more significant role as agents of settlement than as litigation advocates.  I explain to my students that they will far more likely use over their lifetimes the negotiation and mediation skills that I teach than they will likely use the rules of evidence or their appellate advocacy skills.   

This article excerpt first appeared in the St. Louis Lawyer 9A (Dec. 2005), and was reprinted in The Insurance Receiver ((Int’l Ass. of Ins. Receivers Winter 2005) and at http://mediate.com/articles/young17.cfm (footnotes in original omitted here).