No more trials? Why you might want to take notice

Photograph of Raymond Burr and other cast members on the set of the CBS-TV series Perry Mason, from the front cover of Look magazine -- October 10, 1961.

Photograph of Raymond Burr and other cast members on the set of the CBS-TV series Perry Mason, from the front cover of Look magazine — October 10, 1961.

Perry Mason bringing the bad guy to justice in the courtroom. Twelve Angry Men. The OJ Simpson “if it doesn’t fit, you must acquit” murder trial. Think you know trials? You might be surprised to know that, contrary to media depictions and public perception, actual jury trials have become uncommon over the past quarter century.

What does that mean for the average person who rarely sees the inside of a courtroom and only consults an attorney when something unexpected and generally negative happens in their lives?

This blog post is based on a 2014 article by Marc Galanter & Angela M. Frozena, “A Grin without a Cat: The Continuing Decline & Displacement of Trials in American Courts” and quotes it extensively. The authors evaluated federal and state court dockets over time, and their findings are concerning to anyone interested in justice, transparency and the quality of legal decision-making.  Read the original article here:  https://civiljuryproject.law.nyu.edu/wp-content/uploads/2015/05/Galanter-Frozena_A-Cat-without-a-Grin-2012.pdf

Expectations of justice vs. reality

The authors write “…at a time when law and legal institutions play a larger role in public consciousness, not least in the form of news coverage and fictional depictions of trials in television, movies, and books. Legends about increased litigiousness, a ‘litigation explosion,’ irrational juries, and monster awards gained wide currency in the years surrounding the decline in the number of jury trials. The combination of media attention to trials with folklore about litigation seems to have concealed the shrinking number of trials from the wider public.

“The public perception of legal institutions is increasingly through the media rather than through personal experience. … Thus, cultural expectations of definitive adjudication are reinforced at the same time that its presence in real life shrinks.”

Decline in trial cases institutionalized

According to the authors, both the percentage of cases and the overall number of cases that reach trial have declined steadily for the last 25 years, and that applies to all types of cases. They conclude that “the decline has become institutionalized in the practices and expectations of judges, administrators, lawyers, and parties.”

The authors write that an ideology is used to explain and promote the absence of trials, with a corresponding “shift in practice and culture” that is self-perpetuating.

Why are trials less common than before?

The ideology can be summarized as follows, that:

  • A judge’s role is to manage and resolve disputes, with most judicial effort expended in the early stages of cases.
  • Trials are not the optimal way to resolve disputes.
  • Trials are expensive and wasteful.
  • Ordinarily disputes are better resolved by mutual concessions.
  • Settlement benefits parties and courts.
  • Outsourcing disputes to alternative dispute resolution (ADR) institutions benefits courts without detriment to parties.
  • Trial are demanding and risky, unwelcome to all (including the judge), that will occur if the matter is not resolved by settlement or dismissal.

The decline becomes self-perpetuating because:

  • There are fewer lawyers with extensive trial experience.
  • New lawyers have fewer opportunities to gain such experience.
  • As lawyers ascend into decision-making positions having less trial experience, the discomfort and risk of trials looms larger in their decisions.
  • Judges accumulate less trial experience and, in many cases, have less of an appetite for trials.
  • Judges are better able to keep up with court dockets if there are fewer trials.
  • Corporate lawyers benefit from avoiding trials because a loss might discredit them with clients.
  • Plaintiffs’ lawyers benefit by avoiding the pro-defendant tilt of the appellate process.

What happens instead of trials?

The cheshire cat vanishing (detail) in Lewis Carroll's Alice in Wonderland drawn by John Tenniel (1820-1914)

The cheshire cat vanishing (detail) in Lewis Carroll’s Alice in Wonderland drawn by John Tenniel (1820-1914).

Although there are fewer trials, the American legal system has grown larger: more lawyers, more laws and regulations, more enforcement activity, and more money spent on legal issues. The authors write, “…many trial-like things happen in forums that resemble courts (but are not quite).”

Such trial-like things include:

  • Pre-trial bargaining
  • Decisions by judges that are broader than in the past.
  • Judges using summary judgment to terminate cases before trial.
  • Federal judges rejecting cases at an early stage after determining claims are not “plausible.”
  • Increased use of arbitration, especially claims against corporations, fed by mandatory arbitration clauses in consumer and other boilerplate contracts.
  • Administrative agencies, arbitration tribunals, and forums within organizations.

What are the possible concerns and implications of fewer actual trials?

  • Dismissals and negotiated settlements lack the deep accountability of court trials.
  • In many court-like settings, the proceedings require less evidence-gathering, lawyering, and deliberation.
  • Public participation is eliminated (by jurors, spectators, consumers of media accounts.)
  • Non-court forums are, in many instances, explicitly or implicitly sponsored or managed by corporate or government entities vs. individuals. Such large entities bring outsized resources to such proceedings, and the quality of factual presentation and legal argument may not benefit the individual.
  • Local government entities who sponsor non-court administrative courts may suffer from lack of resources, lack of experience and large caseloads, possibly leading to rushed or ineffective case management or cases that languish due to lack of resources.
  • Proceedings before administrators, tribunals, and arbitrators are not the subject of dramas, movies, jokes, stories, or news accounts and give rise to no shared public knowledge.
  • The media portrayal of courts generates expectations of solemnity, thoroughness, impartiality, and fairness. If administrative courts and arbitrators are associated with comparable expectations, are those expectations being met?

Do victims always benefit from jury trials?

  • Not necessarily. Trials today are very much contests between parties of contrasting experiences and resources. Particularly if a victim is fighting a corporation in the case of trucking, product or liability injury or a medical malpractice case, having an experienced lawyer is essential to level the playing field and get victims what they deserve.

It can be challenging for the average person who is not an attorney to understand their rights when it comes to current-day trials and trial-like proceedings. For small cases, trial-like experiences may save money and result in a fair resolution.

However, for cases in which a person’s freedom or ability to pay huge medical bills and live comfortably is threatened due to someone else’s negligence, an attorney who is experienced with trials and trial proceedings can help victims make wise decisions — whether to take the case to trial, to settle or to pursue some other option to obtain the best outcome.

 

Need an experienced trial attorney? Call Jim Ackerman at (217) 789-1977.

Justia Lawyer Rating
Illinois Trial Lawyers Association
Illinois State Bar Association
Super Lawyers