The Vanishing American Trial
Tried a case lately? No? How long has it been? If your trial skills are getting rusty, you're not alone.
"Over the past 200 years, litigation in federal courts has continually changed.
The greatest change has taken place in the past 25 or 30 years. During this period
we have seen the almost total disappearance of civil trials in federal court." Rethinking Civil Litigation in Federal Court, by Hon. Patrick J. Walsh. The Journal of the Section of Litigation , Vol. 40 No. 1 Fall 2013 (ABA). http://www.americanbar.org/publications/ litigation_journal/2013-14/fall/rethinking_civil_litigation_federal_district_court.html
Judge Walsh provides data for all the federal circuits:
Circuit Total # Cases Filed % Reaching Trial
1st 5,721 1.5
2nd 22,351 1.6
3rd 42,825 0.9
4th 17,593 1.0
5th 27,094 1.4
6th 22,135 1.0
7th 18,506 1.5
8th 16,452 1.1
9th 47,437 1.9
10th 10,825 1.5
11th 37,988 0.9
Judge Walsh’s solution is to change the way discovery is conducted. If the chances of trying the case are only 1 or 2%, he questions the value of engaging in expensive, contentious and thoroughgoing discovery - of "everything". Perhaps; perhaps not. Even if the case is not going to trial, discovery has a significant influence on the outcome. Mediation works best when both sides have all the information needed to properly evaluate the case for settlement. Sometimes - as in the typical employment dispute - critical information is known only to one side.
The lessons for ADR are similar. If the case will not be tried, litigator strategies in preparation for mediation might be better focused on resolution options rather than trial tactics. If counsel invests as much time and effort in preparation for mediation as once devoted to trial prep, there is little doubt the investment will lead to better results.