One Perspective: Trials disappearing in the U.S.

Kenneth Childs, The Daily Record Newswire

Over the past several years, fewer and fewer civil cases have proceeded to trial. Indeed, over the past 40 to 50 years or so, the decline has been precipitous. In 1962, 11.5 percent of federal civil cases went to trial, but by 2002 that figure had dropped to only 1.8 percent.

While most statistics do not distinguish between different types of civil cases, it’s likely that the number of construction defect cases going to trial is even less than the average of all civil cases. The reason for this is that most construction defect cases involve multiple parties, which increases each case’s complexity and creates significant logistical problems.

The reasons for the decline in civil trials are several, but the one mentioned most often is the increased use of arbitration, mediation and other alternative dispute resolution (ADR) procedures.

Many contracts now include mandatory arbitration provisions, which require parties to arbitrate disputes, rather than sue in state or federal court. In addition, many courts, including the U.S.

Supreme Court, have undergone a profound change in their views of ADR. Previously, courts were somewhat hostile to it; now, most embrace and encourage it, and several have even imposed mandatory arbitration and mediation programs.

Not only has the use of ADR increased, but the entire process — mediation, in particular — has evolved significantly. Thirty years ago, settlement talks in a typical civil lawsuit would frequently be limited to direct discussions between the attorneys, usually over the phone, and frequently only a week or two before trial. In contrast, settlement talks in most civil cases today occur in the context of a mediation typically scheduled several months in advance of trial and supervised by a third-party mediator.

A second reason for the decline in civil trials is the significant expansion of the discovery process. It began with adoption of the Federal Rules of Civil Procedure in 1938, but has grown significantly.
Prior to 1938, parties were not forced to disclose all of their evidence in advance of trial, and litigation-by-ambush was much more common. The objective of the new rules was to force parties to “lay their cards on the table,” and the result over time was that litigation became a much different ballgame.

While the drafters of the new rules probably did not foresee what would ultimately happen, the end result has been an explosion of the discovery process, which has greatly increased both the time and expenses involved in litigating cases and in many ways made litigation infinitely more complex. The development of email and the increased use of computers over the last 20 years have only aggravated the problem by increasing the discovery complexities exponentially.

Several other factors have also contributed to the declining use of trials, including the increased expense of going to trial, the uncertainty of any trial outcome, the increasing use of summary judgment motions, and the limited capacities of many courts — particularly in times of budget cuts.

The consequences of the declining use of trials are numerous and significant. They include (though not in order of priority):

1. We are increasingly privatizing the process of dispensing justice. The outcome of controversies is no longer decided by judges or juries, but instead by paid arbitrators and mediators who, for the most part, operate by their own rules and according to their own standards. As with any commodity, we can now say that with justice, “you get what you pay for.”

2. Legal authority is becoming more and more irrelevant. Arbitrators are not subject to appellate review and are therefore free, if they so choose, to ignore the law entirely. That is not at all uncommon. Likewise, the mediation process, which is becoming more and more heavy-handed, is controlled in each case by whatever rules and standards the particular mediator may wish to apply, and those rules and standards may, at times, be in complete derogation of applicable law.

3. The lack of prior jury verdicts and trial rulings makes it difficult to value claims for settlement purposes. Thirty years ago, a plaintiff and his or her attorney could value a claim by looking at what judges or juries had awarded for similar claims in several other cases. When EIFS (synthetic stucco) litigation exploded in the mid-1990s, no one had any idea what a jury would likely think of such a claim, because several years passed before more than one or two cases went to trial. Nevertheless, probably more than 100 EIFS cases in Oregon were commenced and settled before one went to trial.

4. Fewer attorneys and judges are acquiring trial experience, so we have likely reached a point when an entire generation of attorneys and judges lacks any meaningful trial experience. The consequences of this are uncertain, but it seems likely that one result will be a perpetuation of the trend (i.e., a dwindling number of cases going to trial).

With less than 1 percent of civil cases going to trial currently, we may have seen the end of the civil trial. Whether that is a good or a bad development is open for debate, but it’s likely that many of the consequences of that trend will be unanticipated. It’s possible that we may soon begin to re-evaluate the need for resurrecting the use of civil trials, but doing so will require significant changes to the way we currently litigate cases.

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Kenneth Childs is an attorney in the construction and design practice group of Stoel Rives LLP. Contact him at 503-294-9409 or kpchilds@stoel.com.

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