THE VANISHING CIVIL TRIAL AND TRIAL CONSULTANTS

January 18th, 2012.

A recent Yale Law Review article documented the rarity of civil trials in the modern American judicial system. The authors rattled off a series of statistics to illustrate the infrequent occurrence of civil trials, with the number of federal cases going to trial dropping from 20% in 1936 to 15.2% in 1940 and finally to only 1.2% in 2002. State court filings resulting in jury trials have been cut in half from 1992 to 2005. The authors conclude, “Thus, in American civil justice, we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become vanishingly rare.”

The primary reason cited in the article for the decline in civil trials is the development of more extensive discovery, where the facts of a case are revealed more readily than in the past, resulting in a greater amount of settlements and summary judgments.

The upshot of this trend toward pre-trial case resolution is that many civil attorneys rarely, if ever, end up appearing before a jury to plead their case. The bulk of an attorney’s time is spent researching and taking depositions, not in devising and executing courtroom strategy.

I am curious whether this trend has increased the amount of “justice” received by plaintiffs and defendants. Certainly it is better for cases without merit to be ferreted out of the system by judges before they ever reach a jury. And if both sides are happy with a settlement, who’s to say justice hasn’t been served?

On the other hand, have the costs of this extensive discovery, both financially and in time spent, actually resulted in less real “justice” and more compromise for the sake of conserving resources. Are plaintiffs being deterred from pursing cases against “deep pocket” organizations, and taking smaller settlements than are truly deserved? Are large organizations paying plaintiffs money they don’t deserve simply to avoid the cost of preparing for trial? If so, the decline in trials might be unjustly helping those who are not deserving, but can exploit the system.

One other (perhaps self-serving) observation: the decline in the number of trials has coincided with the emergence of trial consulting as a profession in the United States. Membership in the American Society of Trial Consultants has grown from 19 in 1983 to around 500 today. In a way, this seems counterintuitive: if there are fewer trials, why is there a greater need for trial consultants? In fact, it is the rarity of civil trials that has driven the need for trial consultants. Since attorneys have such limited opportunities to participate in trials, few attorneys are as prepared as they would like to be to conduct the key elements of a jury trial such as voir dire, opening and closing statements and witness examinations.

Trial consultants help bridge the gap for attorneys by providing expertise in these areas. Because trial consultants are not burdened with the need to participate in case research and discovery (our loss, right?), they are free to assist with a multitude of cases each year, developing a repertoire of tools to assist with successful execution of a trial strategy.

The authors of the Yale Law Review article conclude, “The discovery revolution of the Federal Rules, by overcoming that investigation deficit, set in motion changes that have made trial obsolete.” Hopefully this obsolescence is happening for the right reasons, as the revealing of the facts in a case motivate just outcomes. The answer to this hypothesis is not clear. But what is clear is that as fewer civil cases go to trial, the rare exception where a jury hears and decides a case becomes even more important for attorneys, and more of a challenge.