The Vanishing Trial

What percentage of civil lawsuits in the U.S. federal court system do you think reach trial?  Just the ones that arrived at the trial stage; they didn’t necessarily have to go all the way through the process to a verdict.   


According to a report published in November, 2004 in the Journal of Empirical Legal Studies, only 1.8 percent of civil cases went to trial in federal courts in 2002.  Compare that to 11.5 percent of cases in 1962.


Although the percentage of cases going to trial has dramatically dropped, the actual number of cases has remained pretty steady, at 5,802 in 1962 and 4,569 in 2002.  That means that although far more cases are being filed in recent years, the actual number of cases reaching trial has stayed pretty level.


Tort cases reaching trial fell from 16.5 percent in 1962 to 2.2 percent in 2002.   The number of intellectual property trials dropped from 10.6 percent to 2.4 percent.  


Another trend is that more federal trials are in front of juries; there are fewer with judges as the trier of fact.


What about state civil cases reaching trial.  The article reports that in courts of general jurisdiction of 21 states plus the District of Columbia, the percentage of trials fell from 36.1 percent in 1976 to 15.8 percent in 2002.


What are some of the things we can take from those statistics?


Likely reasons for the decreasing percentage of trials is because of an increase in alternative dispute resolution:  arbitration and mediation.  The number of cases filed per judge has increased, despite the fact the number of judges also has increased, placing pressure on judges to see that cases are ended before trial, often by pressing the parties to settle and by pressing them into alternative dispute resolution.  And the cost barriers to trial have increased through higher attorney rate schedules (e.g. specialization), greater volumes and complexity of discovery and pre-trial activities, increased use of and cost of experts, increased use of jury consultants and mock trials. 


Because most cases are resolved by settlement, the odds are that a defendant will end up paying some measure of damages to a plaintiff.  Many insureds are not prepared for this at the outset of litigation, particularly those without much exposure to litigation.  Brokers and claims people can help prepare the insured for that possibility.


The diminishing number of trials in relation to the number of judges and lawyers means that judges and lawyers on average have less trial experience than they did in the past. 


In 1962 there were 39 trials (both criminal and civil) for each federal judge.  In 2002, there were just 13.2 trials for each judge. 


It’s harder to track the decrease in trial experience among lawyers.  But consider that while the actual number of civil trials — the absolute number — decreased 21 percent from 1962 to 2002, the number of lawyers tripled.  That rate of increase was significantly more than the growth of the population as a whole, from about 180 million in 1960 to about 284 million in 2001, a 58 percent increase. 


A 20 percent decline in the number of actual federal trials combined with a tripling of the absolute number of lawyers means less experience to go around.  What impact does that lack of experience have on the insurance industry?  Are lawyers less inclined to try cases?  Are lawyers, on both sides, and claims people, less qualified to gauge trial outcomes?  Is there less data available to predict trial outcomes?  The study leaves plenty to think about.