A towering state courthouse that opened in downtown Houston last
year boasts 39 courtrooms and expansion space for more. But lawyers
in that city say the new building, built to handle civil lawsuits,
is often eerily empty. The reason: So few cases are going to trial.
The federal courthouses in the northern district of Florida,
a sprawling region that includes Tallahassee, Pensacola, and
Gainesville, have been similarly quiet in recent months. The four
federal judges in the district presided over just 12 civil trials
in 2006 and 5 in
2005.
Around the country, plenty of lawsuits are getting filed, but
fewer and fewer are going to trial. The civil trial is one of the
most iconic American institutions, a time- honored forum where
disputes over injuries, divorces, and all manner of business
disasters are resolved. Yet rising legal costs, decreasing judicial
tolerance for weak lawsuits, and the surging use of alternative
dispute resolution (ADR) are combining to make courtroom showdowns
exceptional occurrences.
After peaking at 12,018 in 1984, the number of civil trials
in all federal district courts has dropped precipitously, reaching
a new low of 3,555 last year. That’s almost half the number of
federal trials that took place 40 years ago, even though the number
of suits filed during the same period soared from 66,144 to
259,541. Now the U.S. Securities & Exchange Commission is
considering a contentious proposal to allow federal shareholder
lawsuits to be handled through arbitration, a move that could
siphon additional lawsuits out of the court system.
University of Wisconsin law professor Marc Galanter has
dubbed this trend the “vanishing trial.” It has also played out in
state courts. In 21 states for which data were available, the
number of civil jury trials fell 40% from 1976 to 2004.
Is this development worrisome? Some in the legal community
are happy that trials are becoming rarer. Courtroom litigation is
“a very inefficient process” for most cases, says Victor Schachter,
a lawyer in Mountain View, Calif., who represents companies in
employment suits.
Yet others are worried, with concerns ranging from the
profound to the practical. Nathan L. Hecht, a senior justice on the
Texas Supreme Court, says that the drop in the number of trials is
resulting in a reduction in the number of precedents—the broad
rulings that tell people and businesses how to behave in changing
and legally ambiguous circumstances. “I think it’s a detriment if
we lose the development of the common law through cases and appeals
that have been the [basis of the] rule of law in this country since
its founding,” says Hecht..
Companies began flocking out of the court system in the 1
980s, steering disputes into alternative procedures such as
mediation (nonbinding settlement discussions) or arbitration (in
which a paid arbitrator or panel of three arbitrators decides a
case).
Still what amounts to private justice remains popular, partly
because it is shielded from the public. In Seattle and surrounding
King County, Wash., for example, a cottage industry of retired
judges has risen up to resolve not just commercial disputes but
also the divorce and child custody battles of the region’s many
high-tech millionaires in proceedings that are fast and
confidential.
Other developments are also contributing to the trial
drought. Changes to liability laws passed in many states have
simply closed the door to many types of personal injury claims.
Limits on damages, for example, have caused a sharp falloff in
medical malpractice lawsuits in a number of states.
Judges themselves have also become much more aggressive about
pruning their dockets, resolving cases through summary judgment, or
pressuring parties to mediate or settle, That’s not necessarily
bad, but some says it’s gone too far. “There’s a divide in the
judiciary,” says William G. Young, a federal district judge in
Boston. Some judges, he says, see their job as “managing” disputes
and avoiding trial. Others, including himself, do not shy away from
trials and think they play a critical role in American justice….
David Berg, a longtime Houston trial lawyer, sees a future
devoid of the courtroom dramas that have long captured the American
imagination. In a manual on trial technique that he published last
year, Berg wrote that he feared that “the Great War stories of the
next generation of trial lawyers would begin, ‘and then, I looked
the mediator in the eyes and I said….”
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