Special Section

The Disappearing Trial and Why We Should Care

By the Honorable Patrick E. Higginbotham

Judge Higginbotham sits on the U.S. Court of Appeals for the Fifth Circuit and is a member of the board of overseers of the RAND Institute for Civil Justice.

Throughout our history, we have subscribed to a system of open justice, dispensed in public courthouses owned by the public and paid for by the public, staffed by professional judges compensated from the public purse, with lay juries and professional trial lawyers as champions of the parties. The right to a trial is enshrined as part of the fabric of the American legal system.

Yet there is growing evidence that the trial is disappearing. Over the past 40 years, trials of every category of case in the federal courts — both civil and criminal — have steadily declined in number. Based on one set of data, civil trials, both bench and jury, have fallen from 5,802 in 1962 to 4,569 in 2002. As a percentage of all civil dispositions, the number of trials has dropped from 11.5 percent to 1.8 percent. Similarly, the number of criminal trials has dropped from 14–15 percent of all criminal dispositions in 1976 to about 2 percent in 2002.

A similar decline appears to be taking place in the vastly larger systems of state courts, although the data are more elusive. In ten states with comparable data, for example, the total number of civil dispositions in general jurisdiction courts decreased 12 percent between 1993 and 2002, but the number of civil trials dropped 32 percent. In 13 states, the total number of criminal dispositions rose 124 percent between 1976 and 2002, but the number of criminal trials decreased 18 percent.

Why trials are disappearing, and the related but even more difficult question of what it means, is not easy to say. On the criminal side, the chief reason behind the demise of the trial is that sentencing has been largely taken from the federal trial judge by congressional enactment of sentencing guidelines. These complex guidelines have effectively eliminated judicial discretion in sentencing. The guidelines have also given criminal prosecutors power in plea bargaining — a power that places a much higher risk on any defendant who chooses to go to trial. The end result of the guidelines is that the U.S. Congress has dramatically raised the cost of exercising one’s constitutional right to trial.

On the civil side, the causes for the disappearing trial are different. The initial driving force away from civil trials was the Federal Rules of Civil Procedure, which were put in place in 1938. The rules allow a complainant to plead a claim in short and plain language. The rules also give both parties the right to discover the facts of the claims and defenses before trial. This “discovery” right, intended to facilitate private settlement by forcing the parties to lay all their cards on the table, enjoyed initial success.

AP/WIDE WORLD PHOTOS/   SUE OGROCKI   A courtroom in Sapulpa, Okla., is vacant in July while the judge is on vacation.

AP/WIDE WORLD PHOTOS/   ED ANDRIESKI   In Colorado, Court Administrator Christine Yuhas prepares documents on the bench in Courtroom One at the Eagle County Justice Center in February for a pretrial hearing in the Kobe Bryant sexual assault case.

But as the pretrial discovery process expanded over the decades from the 1930s to the 1970s, judges increasingly became “managers” of the process. In response, Congress in the 1970s set out to free judges for trial duties by creating federal magistrates. Most judges quickly handed off the burdensome task of managing discovery to the magistrates, who were appointed by the district judges for statutory terms. Ironically, the magistrate system has mostly accelerated the movement toward an administrative processing of disputes rather than enabling trial judges to try cases.

Discovery has now become the main event — the endgame — in pretrial civil litigation proceedings. With less and less expectation of trial, the role for discovery envisioned by the 1938 reform has been greatly expanded. Despite the virtues of discovery — indeed, its necessity in many cases — its excesses have made the formal trial process less attractive than almost any alternative, including arbitration.

Furthermore, because judges and lawyers are increasingly unskilled and inexperienced in the mechanics of a trial, the measure of what is relevant in discovery itself has become blurred at best. The result is that mountains of information are often called for, even if such information would not be particularly pertinent in a trial setting.

An additional “culprit” in the steady decline of the civil trial is the gradual rise of alternative dispute resolution (ADR). Clearly, the declining number of civil trials over the past three decades parallels the rise of ADR, including structured mediation and arbitration. Yet it is not clear how much the shift toward ADR reflects the merit of the process itself — in other words, a competitive success in the legal marketplace over trials.

Instead, much of the shift toward ADR could be the result of a system skewed both by mandates from Congress and judges that ADR be given the highest priority in the pretrial process and by the private bar’s seizure of the economic opportunity afforded by the additional effort required of attorneys in ADR programs. This trend is also encouraged by a profound change in the views of the U.S. Supreme Court, which now warmly embraces arbitration — a sea change from its original hostility to the enactment of the American Arbitration Act in 1925.

This new anti-trial culture is nourished further by the extraordinary numbers of prisoner cases that are filed in the federal court. There is virtually no expectation of trial in prisoner cases (which are civil cases filed by prisoners). This huge set of cases, though processed mostly by the offices of federal magistrates, nevertheless affects the entire federal court system. As an example, the U.S. Court of Appeals for the Fifth Circuit now employs more than 55 staff lawyers just to sort through the cases and to cast them in a manageable form for the judges. The point is not that prisoner litigation is handled improperly or can be abandoned, but rather that this set of disputes contributes to a growing emphasis on administrative processing over trial.

With fewer and fewer trials, this incremental change feeds on itself. Both the bench and the bar have become increasingly comfortable with the disconnect between pretrial and trial proceedings that results from the disappearance of the trial as the ultimate resolution of a dispute.

To be fair, the settlement of disputes is a public good and is not at issue here. Moreover, the judicial system does not have the resources to try more than a fraction of all criminal and civil filings. What is of concern is the continuing diminishment of the enforcement of the law by trial, either by jury or by judge.

The growing imbalance between the numbers of cases decided by trial and those settled either under the threat of trial or in mediation and arbitration generates outcomes that have gone largely unexamined. Among the most disconcerting of these outcomes are

• the potential loss of focus on the intent of the controlling law in these cases
• the perils of “private justice” in a system designed to be public and non-discriminatory
• the worrisome disconnect between trial and pre- trial phases, resulting both from an expanded discovery process and from increasingly distant and detached mediations and arbitrations.

Our trial system has been remarkably resilient and has served the country well, particularly in times of political turmoil and controversy. It is often said that the rule of law is America’s secular god and the courthouses its temples. If that expression captures any truth, then the growth of private adjudication at the expense of public trials comes at great cost.