Cases Keep Flowing In, But the Jury Pool Is Idle
The New York Times
April 30, 2007

Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers' written submissions.

Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop -- until you consider that the number of cases has quintupled in the meantime.

In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.

The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare.

Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains.

There is, of course, nothing wrong with settlements, at least when they are the product of reasoned and sensible compromise between evenly matched adversaries. But trials are not disappearing simply because more cases are being settled. Instead, they are increasingly being replaced by summary judgments, in which judges evaluate evidence submitted to them on paper.

'During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,'' Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution.

Professor Galanter elaborated in an interview. ''Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,'' he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.

''We've moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,'' Professor Galanter said.

...