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The Vanishing Trial Redux, Mediation and the Law of Unintended Consequences


FROM: The Wyoming Lawyer, June 2013, Vol. 36, No. 3

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A few years back, I attended a CLE in Jackson where Gerry Spence was the keynote speaker. Mr. Spence addressed a room of a hundred lawyers or so, mostly from Wyoming, but also Wyoming bar members from Idaho, Utah and Colorado. At the time I had been practicing law in western Wyoming for over a decade in addition to my practice in Idaho and had developed a good familiarity with the Jackson bar, the Wyoming federal judges and a number of state district court judges.

Mr. Spence took an informal survey asking everyone in the room who had tried at least one case in the past year to raise their hand. I would estimate that about one-third of the hands in the room went up. Mr. Spence then asked the same question for two trials, three trials, and so on. By the time he had reached five trials, no hands in the room went up. A case can be made that since that room contained a good representative sample of the most active trial lawyers in the mountain states region, and if these lawyers were not appearing before juries with much regularity, trial practice was indeed on the decline.

After the informal survey, a lively discussion took place where Mr. Spence, in his trade-marked, provocative way, attempted to tease out his ultimate point—that the death of jury trials was a direct reflection of the loss of our fundamental right to a trial by jury, and that as trial lawyers, we were complicit in this death. Mr. Spence’s point highlighted one of the most important policy implications of the disappearance of trials and his call to arms was well taken, however polemical his delivery.

Mr. Spence’s exercise got me thinking about some of the more subtle issues related to the demise of not just jury trials, but trials in general, within the United States. I became interested not only in explanations for the decline in trials, but how the rise of mediation contributed to this decline and the unintended consequences of this phenomenon. The purpose of this short discussion is to attempt to touch the surface of what I feel are some dangerous consequences directly related to the disappearance of trials within the American legal system, regardless of why there are significantly fewer cases going to trial. These unintended consequences bear directly on how we train new generations of lawyers and judges, because the art of trying cases is quickly being lost. I will first briefly touch upon the empirical evidence that has developed related to the decline of trials within the U.S. legal system and then discuss some of the consequences that result from this decline.

The Data

About the same time Mr. Spence was anecdotally highlighting this phenomenon, the emerging data were proving his case. The empirical support for the hypothesis that trials are indeed “vanishing” from the American legal landscape is now well established.

In 2004, the American Bar Association Litigation Section underwrote an exhaustive study of the historical prevalence of trials in the United States and the results were quite stunning. “The Vanishing Trial”[2] authored by Patricia Refo, then chairperson of the American Bar Association litigation section, abstracted what has become the seminal publication touching off the study of the historical disappearance of trials from the legal landscape over the prior four decades. In 2004, Professor Mark Galanter of the University of Wisconsin Law School published an exhaustive, one hundred eleven page study analyzing data from federal and state courts tracking the prevalence of both criminal and civil cases that reached the trial stage from 1962 to 2002.[3] Galanter found that there were 10,899 reported civil and criminal trials in the federal system in 1962. The number of cases reaching trial peaked in 1985 at 12,529. By 2002, the total number of civil and criminal cases reaching trial had dropped by 35% to 8,143 trials or over 4,000 fewer cases reaching trial than had been tried in 1985 despite a five-fold increase in the number of civil filings and twice the number of criminal filings from the period 1962 to 2002. In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8%. The federal data looked at by Galanter do not break down the percentage of cases reaching trial by jurisdiction, but rather by type of case. For example, in 1962, 1 in 6 tort cases reached trial. By 2002, only 1 in 46 tort cases was tried.

Examining the most recent decennial data published by the United States Courts for fiscal year 1990 through fiscal year 2010, the percentage of federal civil cases reaching trial dropped from 4.3% in 1990 to 1.1% in 2010.[4] This data encompasses all types of cases and covers all U.S. federal districts. This drop in cases reaching trial, again, is occurring despite the fact that the data show a trend of either constant or increased filings by district.[5] The data for the decline of trials in state court venues is sketchy and more difficult to quantify. In 2009, the U.S. Department of Justice, Bureau of Justice Statistics published a study that sampled 75 of the most populous counties in the country to collect data on tort cases that reach trial in state court venues for the year 2005, the first year that such data was compiled. Although the focus of the study was to look at the various aspects of state tort litigation, e.g. types of cases, amounts of damages awards, etc., one artifact of the study was data showing that the number of tort cases tried in state courts declined by one-third between 1996 and 2005.[6]

There have been some naysayers who challenge the notion of the vanishing trial, most notably Professor John Lande of the University of Missouri School of Law. Lande argues that the phenomenon of the “vanishing trial” is, in fact, a myth and “not a particularly helpful one at that”.[7] Interestingly, however, in addressing Galanter’s research, Lande concedes that “to say that [the vanishing trial] is a myth is not to suggest that the facts or analysis in Professor Galanter’s report are fictional or inaccurate…rather it is a myth defined as a ‘popular belief or story that has become associated with a person, institution or occurrence….’”[8] After this rather elusive definition of “myth”, Lande then goes on to parse the definition of a “trial” in an equally malleable manner order to support his assertion that the phenomenon of the vanishing trial is not really occurring. However, the data cited above post-dating Galanter’s study, show an unequivocal continuation of the downward trend for trials. The “myth” of the vanishing trial, notwithstanding, the overall decline of cases being tried in federal courts been demonstrated empirically and is not open to serious dispute.[9] The empirical evidence corroborates what Gerry Spence highlighted and, anecdotally, what all experienced trial lawyers have suspected for a number of years.

Trials, Mediation and The Law of Unintended Consequences

The reasons posited for the decline of cases being tried are myriad, however, one of the most persistent explanations for this decline is the now pervasive use of mediation as part of the litigation arc, and in particular court-ordered mediation.[10] One reason that the use of mediation, either as an alternative to the litigation process or, more importantly, as a part of the litigation process, is suspect in significantly contributing to the decline of trials is that some studies are beginning to show that the skills and assumptions required to successfully mediate are actually incompatible with the those necessary to achieve success as a trial lawyer. [11] The problem with this type of finding should be evident—if mediation becomes an integral and required component of the litigation process, as it increasingly has become, what becomes of the skills and assumptions required to try cases? If, in fact, the basics of mediation and the basics of trying cases are “incompatible,” how must the focus of legal education and training be fashioned? In probably the most comprehensive discussion of mediation in the litigation context, Professor Thomas Stipanowich of the Pepperdine School of Law’s Straus Institute argues that mediation and other forms of ADR are not surrogates for trial.[12] This suggests two things; first, that mediators and trial lawyers are two different breeds and second, the emergence of an entirely new model of dispute resolution in the courts independent of trials. We appear to be well down the road for both.

Although Stipanowich does not present empirical findings demonstrating a cause-effect relationship between the rise of ADR, particularly mediation, and the decline of trials, he does discuss at length various factors that might implicitly explain the decline of trials vis a vis mediation. Most important in Stipanowich’s article is the notion that mediation is not a cause per se of the decline of trials, but rather a solution to avoiding the various problems associated with litigation in general and trial in particular, such as delay, cost and unpredictability. This implies (as the name “ADR” makes explicit) that we are developing a second rail of litigation so to speak, one independent of the adversarial trial procedure. This is dramatically different from the current view of mediation as part of the litigation process, the goal of which is trial. And, in fact, there are scholars that advocate for the view that settlement through mediation is the emerging “endpoint” of litigation rather than trial.[13]

Whether ADR in general or mediation in particular is characterized as an adjunct to the litigation process or viewed as a replacement for the current adversarial process leading ultimately to trial on the merits, the consequences of the decline of trials are serious and create a number of considerations for the legal profession and public policy.

First, and foremost, is the point made by Gerry Spence which addresses the philosophical basis of concern about the decline in trials: The right to trial in the American legal system is a fundamental right guaranteed not only by the U.S. Constitution, but by every state constitution. Trials, be they jury trials or bench trials, are not merely an “endpoint” of litigation, they are raison d’etre of the litigation process. Everything that happens in the litigation process is designed to do one thing—ensure that the parties have their day in court.

Secondary, but important, consequences also emerge from the decline of trials. As trials decline, the art and practice of trying cases becomes lost. Lawyers and judges, especially those of recent vintage, understand trials only in the abstract, perhaps through a course in trial practice in law school, or worse, as simply the starting point for appellate cases that comprise legal texts. Law clerks and associates lose the mentoring that comes with watching trials, preparing their bosses for trial, eventually doing parts of trials, then ultimately going solo at trial. Litigation becomes meaningless process, an end in itself.

With the loss of trials, the legal community loses precedent, appeals are not taken on the merits, but relate only to arcane pre-trial procedural matters, is such and such document subject to discovery, is so and so expert qualified to give and opinion, has the defendant properly disclosed an expert witness or a privilege log, or myriad other pre-trial matters that have little to do with the merits. Indeed, as Galanter poignantly notes: “What increased as trials disappeared was not settlement, but nontrial adjudication.”[14] In fact, judicial involvement as trials decline has not fallen, but increased.[15] Judges are more active in the pretrial phase and cases “depart” the court at an earlier stage,[16] not through trial or settlement, but for other reasons, chiefly, Rule 12 dismissals or summary judgments.[17] Whether judges are dismissing cases because they lack merit, more cynically, to clear their dockets and avoid trials, is something many experienced trial lawyers suspect, but cannot ultimately demonstrate empirically.

Regardless of why judges may be jettisoning cases at the pretrial stage, another consequence of the decline of trials is loss of predictability of outcomes that trial results provide, particularly for litigants that need resolution on the merits, such as contract or intellectual property disputes, where a verdict clearly decides the rights and duties of each party. Of equal importance, it is disingenuous for a mediator to use, as a mediation tactic, the hackneyed parade of horribles in “risking all” to the vagaries of a jury in the absence of any actual jury verdicts that are instructive. Apropos mediator tactics, as trials decline, ultimately mediators, lawyers and litigants will have no basis of comparison as to the relative value of a case, the actual risk of trial, how the law will be applied and so forth.

Another consequence of the decline of trials is the loss of our basic system of checks and balances in the application of our laws. Without complete adjudication of claims, legislatures cannot determine how the laws they pass are being applied, if those laws are ambiguous or achieving the effects they were designed to achieve.[18]

Coming full circle to the potential loss of our right to trial by jury, the decline of trials leads to an equally important constitutional loss—the public scrutiny of and participation in our courts. Much the way arbitration has become untethered from judicial due process in a public forum and the safeguards of appellate review, more and more cases are being settled in private, court records are lacking in even rudimentary information pertaining to outcomes of cases.

Finally, the decline of trials leads to decreased public participation in our courts as jurors. The act of being a juror does more to dispel the hyperbole and misinformation thrust upon the people by sensationalized media and agenda-driven interest groups than any fact-checking organization can.[19] As much as we pay lip service to the importance of serving as jurors, the reality is much the opposite. We withhold important evidence from jurors because we think they are too easily confused, we take away their ability to determine the real value of cases by imposing damage caps, we allow the media to insult them by calling them irrational and unpredictable; ultimately, with the decline of trials, we will leave them out of the process completely.

[1] Michael D. Gaffney is a shareholder in Beard St. Clair Gaffney, PA, Idaho Falls, Idaho and a member of the Idaho, Wyoming and Oregon bar. He practices law in eastern Idaho and western Wyoming. He is a graduate of the University of Idaho College of Law where he was a member of the Idaho Law Review.

[2] Patricia Refo, The Vanishing Trial, 30 Litigation Online: The Journal of The Section of Litigation 1-4 (2004).

[3] Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 Journal of Empirical Legal Studies 459-570 (2004).

[4] United States Courts Judicial Facts and Figures 2010, Table 4.10, available at

[5] Id. at Table 4.2. Wyoming, however, has shown a drop in filings in U. S. District Court from 1990 through 2010. In 1990, 411 cases were filed in the U. S. District Court for the District of Wyoming. By 2010, that number had dropped to 294.

[6] Thomas J. Cohen, Tort Bench and Jury Trials in State Courts, 2005, Bulletin of the Bureau of Justice Statistics, U.S. Department of Justice, November 2009.

[7] John Lande, Replace “The Vanishing Trial” With More Helpful Myths,” 23 Alternatives to the High Cost of Litigation 161 (2005).

[8] Id. at 161.

[9] At the most recent Idaho-Wyoming-Utah Federal Bar Association Tri-Bar Conference held in Sun Valley last fall, it was reported that the number of cases reaching trial had fallen to under one percent in Idaho federal court. Data were not presented for Wyoming or Utah.

[10] Numerous reasons are given for the decline trials, from overcrowded courts to the rise of class actions that cannibalize individual claims and make trials unmanageable. Tort reform is another persistent “explanation” for the decline of trials. However, it is more likely that tort reform, particularly the imposition of damage caps, discourages the filing of lawsuits rather than acting as reason for avoiding trial once a lawsuit is filed.

[11] Dorothy J. Della Noce et al., Assimilative, Autonomous or Synergistic Visions: How Mediation Programs in Florida Address the Dilemma of Court Connection, 3 Pepp. Disp. Resol. L.J. 11 (2002).

[12] See e.g. Thomas J. Stipanowich, ADR and the “Vanishing Trial”: The Growth and Impact of “Alternative Dispute Resolution,” 1 Journal of Empirical Legal Studies *** (2004).

[13] Kimberlee K. Kovach, The Vanishing Trial: Land Mine on the Mediation Landscape or Opportunity for Evolution: Rumination on the Future of Mediation Practice, 7 Cardoso J. Conflict Res. 27, 46 (2006).

[14] Galanter, supra at 481.

[15] Id. at 481-484.

[16] Id. at 482.

[17] Id. at 482-484.

[18] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) is a perfect example of how after the Eleventh Circuit and the U.S. Supreme Court reversed a pay discrimination jury verdict in favor of Ms. Ledbetter, finding that her claims for unequal pay were time-barred under the Civil Rights Act of 1964 and the Equal Pay Act of 1963, Congress quickly responded by amending the Civil Rights Act of 1964 in 2009 to trigger a new statute of limitations with each pay period. Had the case settled in typical fashion with non-culpability and confidentiality provisions, the lawmakers who originally enacted the pay equity laws might never have discovered that the courts were applying the law in a fashion contrary to the intent of Congress.

[19] The most notorious example being Liebeck v. McDonalds Restaurants, 1994 Extra LEXIS 23 (Bernalillo County, N.M. Dist. Ct. 1994), the spilled coffee case which is one of the most misrepresented cases in American jurisprudence. The reader is encouraged to read the case and its procedural history and compare the actual facts of the case to what has been presented in the media.

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