Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop — until you consider that the number of cases has quintupled in the meantime.
In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962.
The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare. . . .
“During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,” Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution. . . . “Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,” he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article.
“We’ve moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,” Professor Galanter said.
In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants.
Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government. . . .
Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones.
While the article focuses on the impact at the federal level, there has been a similar change at the state level.
The summary judgment data also suggest that the trend towards settlement has been somewhat exaggerated.
In the early 1960s you have 12.1% of federal civil cases resolved by a judge on summary judgment or at trial. Now, you have 10.3% of cases resolved in that manner. Thus, cases are only slightly more likely to be resolved by settlement, but are a lot more likely to be resolved in motion practice.
Galanter's statement in the quote above about the declining role of cross-examination is also somewhat overstated.
What is happens in civil cases is that witnesses are deposed under oath in opposing lawyer's offices, the moral equivalent of cross-examination, rather than in front of a judge during trial. This testimony is then presented in a motion for summary judgment. Friendly witness testimony for a side seeking summary judgment is presented by affidavit, but the opposing party generally had an opportunity to depose that witness before the case went to summary judgment stage.
On the other hand, there is a lot to be said for the commentary in the article about judges encroaching on the right to trial by jury. A 10th Circuit affirmance today of a summary judgment grant in an employment discrimination case is a perfect example. Yes, the Plaintiff who was fired reversing bank charges was weak, but when every single bank branch prior to a recent reorganization was a woman (and one was an older woman) and afterwards, the Plaintiff was finally replaced, like all the others, by a young man, there is room to wonder if the severity of her dismissal was excessively harsh and really motivated by other factors. The fine lines of evidentiary sorting conducted by the 10th Circuit in that case is the stuff we'd normally leave to a jury to weigh.
In criminal cases, it isn't uncommon for the testimony of key witnesses to have been provided, instead, in a preliminary hearing.