The percentage of civil cases reaching trial in the federal courts has fallen from 11 percent in 1962 to 1.8 percent in 2002.
Trials have declined despite an increase in case filings over 1962-2002. In the federal courts, civil filings increased by a factor of five; trials fell by some 20 percent. Nor are there fewer cases of the sorts that are most trial prone (torts and civil rights, in the federal courts). The decline in trials seems to affect every category of cases.
On the criminal side, some 15 percent of criminal defendants were tried in 1962, but less than 5 percent in 2002. In spite of rising numbers of defendants, the absolute number of trials was 30 percent lower in 2002 than in 1962.
The decline in jury trials has been accompanied by a rise in settlements, summary judgments, arbitration and other alternative forms of dispute resolution.
Factors that may be discouraging parties from proceeding to trial include: increases in cost and risk; institutional changes in procedure that encourage such avoidance; and a corresponding shift in the ideology of judges, who increasingly view their role as dispute resolvers rather than adjudicators.
· The decline of jury trials has occurred at a time when the rest of the legal system -- the number of lawyers, the amount spent on law, the amount of authoritative legal material, the size of the legal literature, the prominence of law in public consciousness-- has flourished and grown.
Source: Presentation by University of Wisconsin and London School of Economics professor Marc Galanter. Prepared for the Symposium on The Vanishing Trial in San Francisco, December 2003.