The Vanishing Trial

A lot has been written in the legal literature in the last few years about the tremendous decline in the percentage of civil cases that go to trial. While most cases have always been resolved by settlement or by motion, the number of cases remaining for trial has in recent years appeared headed for the vanishing point. From the profession’s point of view, this phenomenon raises concerns about whether trial lawyers are receiving adequate training (or whether they even deserve to be called trial lawyers). More to the point, it is fair to ask whether attorneys who rarely go to trial have an adequate appreciation of the value (or lack of value) of many of the pre-trial activities in which they zealously engage.

Should clients be concerned about the rarity of trials? In most cases, clients do not engage in lawsuits for the joy of going to trial. Instead, they are usually interested either in obtaining recompense for injury, or minimizing their exposure, depending on whether they find themselves as plaintiffs or defendants. Anyone with litigation experience knows that a trial does not necessarily produce a better outcome for either side than a negotiated settlement. So most cases should settle, once a fair assessment can be made of the relative costs and risks of continuing litigation.

The real issue for clients is the wastefulness of the entire litigation process. Parties and attorneys do a lot of things in pre-trial proceedings that are either envisioned to prepare for a trial that is not going to happen, or that they do because they don’t have enough experience to know what will be useful for trial, or that they do to run up the expenses for the other side and provide them another incentive to settle. The goal should be to reduce those kinds of activities, and focus on either settling the case or trying the case. Of course it is usually helpful to achieve a better settlement if the other side knows that you will be prepared for trial, but it may not be necessary to file every possible motion, and consume endless amounts of time in discovery in order to make that point.

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