The disappearing trial
Connecticut Law Tribune
August 8, 2005

Now you see it, now you don't. I'm not referring to a magician introducing his prestidigitation but rather to a fascinating and important current legal development: a significant reduction in the number of disputes being resolved by trial.

This phenomenon has been tagged with the catchy title of "the vanishing trial." Several Sections of the American Bar Association have been studying the trend, the ABA Section of Litigation convened a symposium on the subject, and numerous articles are being published with varying analyses. Professor Marc Galanter of the University of Wisconsin and the London School of Economics did a major examination of the statistics, trends and possible explanations. Closer to home, federal Judge Mark Kravitz has thoughtfully studied and reported on the subject, most recently at the Connecticut Bar Foundation's James W. Coopers Fellows annual meeting.

All appear to agree on the statistics: The number of civil trials has been steadily decreasing. While the numbers are most striking in federal court, the trend also exists in the state courts. Galanter's numbers show that between 1962 and 2002 the number of cases which were disposed of by trial in the federal court dropped from 11.5 percent to an astonishing 1.8 percent. Not only has the percentage dropped but the absolute number of dispositions by trial has also dropped, despite a substantial increase in case filings.

While there is no disagreement on the trend itself, there is disagreement on the causes of the drop, on the implications for our civil justice system and whether the decline is a positive or negative development.

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