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As a species, federal tort trial lawyers continue to become more endangered as the number of federal tort cases resolved by trial continues to plummet. There has been a 79% decline in the overall number of trials, falling to below 800 in fiscal year 2003, from a total of 3,600 in 1985, according to a government report released last week. Many legal scholars have explained the steady decline in civil trials as reflective of the increased use of alternative dispute resolution (ADR). But University of Pennsylvania Law School Professor Stephen Burbank said that with respect to the federal courts there are a number of causes operating against trials, and that ADR is not a likely major cause in the declining trial rate. He cited as one cause the increased cost of litigation, including “prominently” the cost of discovery. “However it is quite clear that ‘trial’ judges ought to spend more time on that activity from which there name is taken,” he said, noting that federal judges now give more attention to case management and nontrial adjudication than they give to trials. “Very few techniques of pretrial management, let alone summary adjudication, are trial-friendly.” Of the 512,000 civil cases resolved in fiscal years 2002-2003, 98,796 of them were tort cases and only 1,647 of them went to trial-a mere 2%, according to a report by U.S. Department of Justice Bureau of Justice Statistics statistician Thomas H. Cohen. In the early 1970s, about 10% of tort cases went to trial. For example, in 1970, 25,451 tort cases concluded in U.S. district courts. Of those, 2,526, or 10%, went to trial, said Cohen. In other words, although there were roughly half the number of tort cases disposed of in 1970, there were more than three times the number of trials than in fiscal year 2003. In 1985, in another example provided by Cohen, 38,128 tort cases were resolved, 3,604 by trial, or 9%. The report notes that this rise in the number of trials reflected an increase in asbestos products liability trials. Since then, thousand of asbestos-related cases have been transferred to one district court pursuant to a multidistrict litigation order. The personal injury factor In fiscal years 2002 and 2003, about 90% of tort trials were personal injury cases. The plaintiffs prevailed in almost half, but were less successful in medical malpractice trials (37%) and products liability trials (34%). The median damage award was about $201,000, but was higher in products liability trials-about $350,000, which reflected about 13% of the cases-and highest in medical malpractice trials, about $600,000, which reflected about 10% of the cases. Juries heard 71% of the cases, but plaintiffs were more successful in judge trials (54%) than in jury trials (46%), particularly those involving personal injury, as opposed to property damage. But that success did not mean that plaintiffs got more money if they won in bench trials. On the contrary, the median award was higher in jury tort trials, $244,000, than in bench tort trials, $150,000. These median-award differences, the report notes, were most striking in property damage trials: $196,000 in bench trials and $700,000 in jury trials.

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