28 The relevant data are neither uniform nor comprehensive, especially at the state court level. While it is “beyond dispute” that trials occur less and less frequently, 27 accurately measuring the extent of the decline is not a simple task. 25 Primarily due to foreclosure cases growing out the mortgage crisis, bench trials remain common in a few state courts, but rarely occur in others. 23 The comparable number for criminal cases was 1.3 percent. 22 One study found that by 2002, civil cases were resolved by juries in state court less than 1 percent of the time.
Diamond rush distrust trial#
21 But, if anything, there is even less likelihood of a case proceeding to trial in state court than in federal court. Trials - and, thus, juries - are largely extraneous.” 20 Of course, many more cases are filed, and ultimately resolved, in state courts. District Court for the District of Massachusetts explains: “Today, our federal criminal justice system is all about plea bargaining. 18 Today, trials only occur in approximately 2 percent of federal criminal cases. By 2000, it was just 6 percent, and by 2010, the rate of disposition by trial in criminal cases was less than 3 percent. However, following passage of the federal sentencing guidelines in the mid-1980s, the percentage of criminal cases resolved by trial significantly declined. 17 The percentage stayed roughly the same until the early 1980s. By the end of World War II, plea bargains or dismissals resolved approximately 80 percent of all criminal cases in the federal courts, and trials accounted for the remaining 20 percent. The pattern in federal criminal cases is similar, although not quite as pronounced. It is not surprising, therefore, that astute commentators believe civil trials in federal court are “approaching extinction.” 16 15 The absolute number of civil trials in district courts is lower today than it was at any time in the last 55 years (the period for which comprehensive data are available). Today, approximately 1 percent of all civil cases filed in federal court are resolved by trial - the jury trial disposition rate is approximately 0.7 percent, and the bench trial disposition rate is even lower. 14 But 40 years later, the rate of disposition by trial in civil cases had fallen to less than 2 percent, even as the total number of civil dispositions grew dramatically. 13 By 1962, trials still accounted for roughly 12 percent of all civil dispositions in federal court. 12 When the Federal Rules of Civil Procedure were first promulgated in 1938, approximately 20 percent of all civil cases were resolved by trial. To the contrary, there has been a “century-long decline in the portion of cases terminated by trial” and a more than “twenty-five year decline in the absolute number of civil trials. Although trials are not likely to disappear altogether, they seem virtually certain to remain on the endangered list for years, and perhaps forever, primarily because Supreme Court decisions have made case disposition by motion more likely, and parties in both civil and criminal cases are increasingly drawn to what they perceive to be readily available, less expensive, and more attractive alternatives.ĭiminishing trials are not a new phenomenon. 11 The article also outlines the principal reasons why trials have diminished and some of the resulting consequences. It confirms that today a trial is very much the exception, rather than the rule, regardless of jurisdiction (federal or state), type of case (criminal or civil), type of trial (bench or jury), or type of claim (contract, tort, etc.).
This article documents and quantifies the continuing disappearance of trials. 10 However, even those “in the know” often do not appreciate just how rare trials have become.
3 The pronounced disappearance of trials seems to have largely escaped the attention of Hollywood, 4 the literary community, 5 and the mainstream media, 6 but this development is well known to judges, 7 other court personnel, 8 litigators, 9 and academics. Trials occur rarely, typically only in the most intractable disputes. 2 While trial remains a theoretical possibility in every case, the reality is quite different. Trials, particularly jury trials, once played a central role in the American legal system.
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