Saturday, December 13, 2003

The Death of the Trial

As controversy continues to roil over the supposed propensity of Americans to seek solutions to all their problems through litigation, the New York Times reports on a new ABA-sponsored study by Marc Galanter suggesting that federal jury trials, at least, are going the way of the dinosaur.

Notice we said trials, not lawsuits. Federal civil filings remain robust. But fewer than 1.8% of all federal civil actions now reach trial, as compared with 11.5% in 1962. Does this decline result from more frequent settlements? That appears doubtful. Preliminary numbers from research by USC investigators, which still need to be validated, suggest that settlements are actually in decline, falling from about 50% in the 1970's to between 35% and 40% in the 1980's and 1990's. A more plausible explanation for the decline in jury trials may be an increase in "nontrial adjudications" -- e.g., dismissal via summary judgment. Such pretrial dispositions are now reportedly rendered in about 50% of all civil actions, compared with 32% in 1970.

Daubert has certainly contributed to the increased amenability of civil claims to pretrial dismissal. Further empirical study is warranted, to measure Daubert's precise contribution to any such trend. But it is meanwhile an eye-opening datum, that the chances of ever seeing a jury impaneled in a federal civil case are less than 1 in 50. In a private civil action, the odds are actually better, apparently, that the Supreme Court will grant your petition for certiorari.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.