Thursday, November 19, 2009

The Vanishing Trial

An article from Pacific Business News shows just how dramatically the number of jury trials has dropped off in the State of Hawaii, where only 17 civil jury trials were completed in the state courts last year.  The trend appears to be the same everywhere, though perhaps not to the drastic extent that has been accomplished in Hawaii.  The article attributes this decline to court-sponsored arbitration and mediation programs.  For example, all personal injury and other tort cases with a value of less than $150,000 are sent to arbitration.  Should mediators be happy about this trend, representing as it does the triumph of alternative dispute resolution, to the point that trial has become a vanishing breed?  One unhappy trial lawyer quoted in the article makes the point that trial should not be viewed as an evil that should be abolished.  He also points out that trials are necessary to make mediation work:
“If you don’t periodically measure the value of cases through trial, how are the mediators and settlement conference judges able to tell you what your risks are for going to trial?”
I think that is a very fair point.  The purpose of trial is not just to allow lawyers to enjoy the sport.  The purpose is to allow the cases that should go to trial the opportunity to do so, to provide an example for all the cases that do not go to trial.  (That is also of course the argument for taxpayers subsidizing the court system by paying the salaries of judges and other court personnel, because everyone benefits from knowing that contracts can be enforced in court, and remedies can be obtained for other civil wrongs.)  

The real problem is that all the pre-trial aspects of litigation, particularly discovery, but also the endless opportunities for pre-trial motions, have gotten so expensive that those costs drive many cases to settlement even where the parties might prefer to hand them to a jury for resolution.  Another problem is that when trial becomes increasingly rare, litigators tend to fear it more, and to over-prepare to the point where trial becomes unduly expensive, and parties choose to settle mainly out of fear of the unknown.  As I mentioned in another post  I did on this topic a couple of years ago, I would prefer to see a system where most cases are still settled, either through mediation or some other process, but more cases are tried, and fewer cases are litigated to the point of wastefulness.  I think that can only be accomplished by simplifying the rules, restricting discovery and motion practice, and encouraging parties to resolve pre-trial issues informally, and move their cases along to either settlement or trial.

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