I have a fair number of cases in federal court at the moment. One of my clients recently asked me if their federal court case would make it to trial. While I knew that few cases these days—whether fedearl or state court—make it to trial, a recent story in the National Law Journal quantifies just how rare federal trials have become:
In 1962, 11.5% of federal civil cases went to trial, compared with 6.1% in 1982, 1.8% in 2002 and 1.2% in 2009.
The statistics cited by the NLJ show a steady decrease in the number of cases going to trial over five decades. While a 10% decrease over the span of nearly 50 years may not seem remarkable, does that mean in the next 50 years federal court trials will completely disappear? Of course not, but the trend does show a dip below one percent occurring in the near future.
What’s going on? Here are what two federal judges had to say about the phenomenon at a recent Federal Bar Association panel:
Judge William Young of the District of Massachusetts says the fault lies partly with federal judges themselves. Alternatively, Judge Brock Hornby of the District of Maine states that “outside forces, not judges,” are causing the decline. “Whether we care or not, I don’t think there’s much we judges or anyone else can do about it,” said Hornby. “Let’s face it, times change.”
Judge Hornby listed nine reasons why he believes the number of civil trials has declined:
- Disputes are increasingly international and more amenable to international arbitration.
- Lawyers have learned to measure which cases will be profitable.
- Clients are far more sophisticated about how they use lawyers.
- Companies are more skilled in risk management than they used to be.
- Many causes of action and the bases for liability have matured, so litigants can more easily settle sexual harassment or asbestos cases, for example.
- Congress hasn’t recently passed new laws creating liability for actions, such as the Americans With Disabilities Act of 1990.
- More lawyers and law firms use alternative dispute resolution and more contracts contain clauses requiring it.
- Electronic discovery has significantly jacked the cost of litigation.
- News and entertainment portray juries as irrational, unpredictable and out of control.
As the lions share of my practice involves international litigation, I have to agree with Judge Hornby on the first point that international arbitration has had a significant impact on the number of cases not making it on the federal docket.
As the world economy has become globalized, parties have become increasingly sophisticated in drafting international arbitration clauses into their contracts. I have previously posted on how to draft such a clause in the article 7 Ways to Bulletproof Your International Arbitration Agreement.
Ultimately, Hornby said, judges need to respond to the societal and legal forces shaping how society uses its courts.
Disputes have to come to us,” Hornby said. “We are there to respond. . . As federal judges, we don’t have a roving mandate to go out and bring cases in and compel people to go to trial.”
What do you think?