Freedom Lawyers of America

http://www.nytimes.com/2003/12/14/national/14TRIA.html?hp

On television and in the popular imagination, lawsuits and prosecutions end
in trials, in open court before a jury. In reality, according to a new
study, trials have become quite uncommon.

In 1962, the study says, 11.5 percent of all civil cases in federal court
went to trial. By last year, that number had dropped to 1.8 percent. And
even though there are five times as many lawsuits today, the raw number of
civil trials has dropped, too. They peaked in 1985 at 12,529. Last year,
4,569 civil cases were tried in federal court.

"What's documented here," William G. Young, the chief judge of the Federal
District Court in Boston, said in a telephone interview, "is nothing less
than the passing of the common law adversarial system that is uniquely
American."

The percentage of federal criminal prosecutions resolved by trials also
declined, to less than 5 percent last year from 15 percent in 1962. The
number of prosecutions more than doubled in the last four decades, but the
number of criminal trials fell, to 3,574 last year from 5,097 in 1962.

The study, based on data compiled by the federal court system, was prepared
by Marc Galanter, who teaches law at the University of Wisconsin and the
London School of Economics, for the American Bar Association.

"This is a cultural shift of enormous significance," said Arthur Miller, a
law professor at Harvard.

Opinions vary on whether the shift is a positive one. Negotiated
settlements may satisfy both sides in a way a win-or-lose trial cannot, and
pretrial dismissals of cases by judges may avoid needless trials of
frivolous claims. Both of these alternatives to trial are less cumbersome,
less expensive and more efficient.

On the other hand, some studies suggest that individuals suing companies
fare considerably better before juries than they do in settlements and
before judges, meaning that a decline in the number of trials may hurt
plaintiffs with valid claims.

Judges, scholars and lawyers gathered over the weekend in San Francisco for
a bar association symposium to discuss the study. Among the possible
explanations for what the meeting's organizers call "the vanishing trial"
is a growing antagonism to trials by lawyers and judges, who consider them
costly and risky. They prefer negotiated settlements and pretrial
determinations by judges based only on paper submissions.

"There is a striking philosophical, ideologically driven view that is
hostile to trials," said Judge Patrick E. Higginbotham of the United States
Court of Appeals for the Fifth Circuit, in New Orleans. He attributed the
view to those who prefer mediation to adjudication.

Others view the trend as progress.

"If a trial occurs," said Samuel R. Gross, a law professor at the
University of Michigan, "it usually means a whole lot of efforts by a whole
lot of people have failed."

Paul Butler, a law professor at George Washington University, disagreed. He
said the loss of this form of dispute resolution was a devastating one.
"Nobody does trials like Americans," Professor Butler said. "We made it an
art form. It's almost as fundamental a part of our culture as jazz or rock
'n' roll."

Data from the state courts, which handle most lawsuits, are less complete
and harder to interpret. Legal experts at the National Center for State
Courts have studied the available data and say the patterns in them,
particularly as they concern jury trials as opposed to those before only
judges, are broadly consistent with those in the federal courts.

Judge Higginbotham recalled his life as a federal trial judge in Texas a
quarter-century ago. "When I went on the bench," he said, "we tried cases.
I sometimes had three juries deliberating."

In 1962, the average federal judge conducted 39 trials a year, including
both civil and criminal cases. These days, that number has fallen to 13.
Judges spend the rest of their time doing such things as supervising the
exchange of information between parties, deciding pretrial motions and
urging or approving settlements and plea bargains.

The dearth of trials has resulted in a sort of vicious circle. Many lawyers
who call themselves litigators have little trial experience, which may in
turn make them wary of taking cases to trial.

"We're almost moving into a barrister model," said Patricia Lee Refo, an
Arizona lawyer and official of the American Bar Association, referring to
the separate caste of lawyers who try cases in Britain.

On the criminal side, there is almost no dispute that the falling number of
trials in the federal courts is because of the revisions in sentencing
laws. Defendants who insist on a trial can face much longer sentences than
those who accept a plea bargain.

The civil trend is harder to explain, and legal experts have many theories.

Some point to the rise of arbitrations and other less formal means of
resolving disputes. Though the number of cases filed in court has continued
to increase, it may be that some sorts of cases have gone to other forums.
Injury and contract cases, which represented 74 percent of all federal
civil trials in 1962, accounted for 38 percent last year, according to
Professor Galanter. Those categories of cases, he said, have largely been
replaced by employment discrimination and other civil rights cases, which
now represent a third of all federal civil trials.

The sheer complexity and cost of litigation, others say, make settlements
more attractive. The cost of a trial can exceed the cost of a settlement,
giving defendants an incentive to settle. Plaintiffs and their lawyers, on
the other hand, often prefer the certainty of a settlement to the
possibility of recovering nothing at trial.

"The striking problem," Professor Gross said, "is that we have generated a
procedure that is way too expensive if actually employed."

But Gillian Hadfield, a law professor at the University of Southern
California, said settlements might actually be in decline.

"We need to follow up on this initial study to confirm these numbers,"
Professor Hadfield said, "but at this point it looks as though the
percentage of cases terminated in settlement has fallen by between 10 and
15 percentage points, from approximately 50 percent in 1970 to between 35
and 40 percent during the 1980's and 1990's."

By contrast, she continued, "nontrial adjudications" - written decisions by
judges typically based only on papers submitted by the parties - have risen
to 50 percent from 32 percent since 1970.

Professor Miller said such judicial decisions can be troubling.

"We speak glowingly of letting people have their day in court," he said.
"Now they have their day on papers."