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Trial scenes of emotive witnesses, vituperative lawyers and gavel-banging judges may be the stuff of television law dramas, but they’re bearing less and less resemblance to reality, an American Bar Association study shows. Between 1962 and 2002, the percentage of federal civil cases resolved by trial plummeted from 11 percent to 1.8 percent, says “The Vanishing Trial,” a preliminary report presented at an ABA symposium earlier this month. The number of trials per year showed more than a 20 percent net drop over the same period, starting at 5,802, peaking at 12,529 in 1985 and then falling to 4,569. That occurred despite a fivefold increase in cases resolved, from roughly 50,000 to nearly 260,000. Federal criminal trials dropped from 15 percent to 4.7 percent. Nationally, there were 3,574 trials last year, compared with 5,097 in 1962, despite the increase in resolved cases. Most of the drop occurred after 1991. The report suggests that the cost and risk of going to trial might be dissuading parties. Other factors may be the rise of alternative forms of resolution and a policy shift by judges toward resolving rather than presiding over cases. Senior U.S. District Judge Dickinson Debevoise calls the drop “an extremely good thing” that saves parties time and money and “reflects the success of our mediation and arbitration programs.” NEW JERSEY MIRRORS TREND Though New Jersey figures are not broken out in the ABA report, statistics obtained from the U.S. Administrative Office of the Courts for the district generally mirror the national picture. Combined civil and criminal trials averaged 12 per judge last year, compared with 20 in 1965. The number rose until it reached 52 in 1977 and then fell off. Meanwhile, federal judges in New Jersey are overseeing more cases, handling an average of 201 in 1965, 363 in 1977 and 385 in 2002. Not every type of civil case has been equally affected. Tort cases, which in 1962 comprised 55 percent of all federal civil trials and 81 percent of jury trials, fell to 23.4 percent and 26 percent, respectively, by last year. Global settlements in asbestos and other mass-tort cases are likely a contributing factor, the ABA report suggests. But those settlements do not tell the entire story, as evidenced by the falloff in contracts trials as well. Picking up some of the slack are civil rights cases, which make up 41 percent of civil jury trials. But even there, only about one in 25 was tried last year, compared with one in five in 1970. The ABA report focused on the federal court system but included a partial survey of state courts that showed a similar pattern. Based on combined figures from 22 states including New Jersey, the number of jury trials dropped from 25,000 to 19,000 between 1975 and 2001. The number of cases resolved by those courts tripled to more than 3 million in 2001. And the number of trials, including bench trials, increased from 370,000 to 570,000. Figures obtained from New Jersey’s Administrative Office of the Courts, covering 1985 to 2003, show a drop from 2.7 percent to 2 percent for civil cases and from 6.4 percent to 2.5 percent for criminal cases. Taking the place of civil trials is increased use of settlement, summary judgment and alternative dispute resolution, the ABA report found. The report, written by Marc Galanter, a professor emeritus at the University of Wisconsin Law School, and informed by a series of white papers by other authors, reached no conclusion about the reasons for the change but suggested that increased cost and risk might be a reason. Galanter’s report also points to institutional changes in procedure that encourage trial avoidance and a shift in ideology among judges, who increasingly see themselves as dispute resolvers rather than adjudicators. That would seem to be a factor in New Jersey. Nicholas Politan, a federal district judge from 1987 until he left two years ago to pursue a career as a private mediator, says he did more than his share to bring down the district average. “I caused a lot of it,” he says, estimating he settled 90 percent of his cases and averaged fewer than 10 trials annually, and toward the end of his tenure, “a lot less.” Trials are the fallback for unresolvable cases, in his view. He might be at the extreme, but he is not alone in his enthusiasm for ADR. On the bench since 1979, Debevoise says he is trying fewer cases, even factoring in his reduced senior judgeship caseload. Many at the ABA symposium were less sanguine about the trend. Of particular concern was the drop in criminal trials, says Patricia Lee Refo, a Phoenix lawyer and chairman of the ABA’s litigation section. There was broad consensus at the symposium that federal sentencing guidelines are to blame because they “penalize defendants who choose to exercise their right to a criminal trial,” she says. Debevoise differs. “Most people who are indicted are guilty.” It is their decision whether to go to trial and “it is better for them to get it done early.” On the civil side, Refo says, it is cause for concern if people are settling because trials take too much time or money or because litigants feel pushed into it. She also says insufficient court resources are a reason judges are trying harder to dispose of cases without trial. The idea of easing the burden through timed trials, for example, was well received at the symposium, she says. In an interview, Galanter says some white papers said that a decline in the “public aspect of justice,” due to fewer trials, is a “diminution of democracy.” Recent corporate scandals involving companies like Enron and Tyco exemplify situations “where we expect the courts to generate norms and a sense of where the boundaries are,” he says. Debevoise dismisses that concern, noting that most important legal questions are decided not at trial but on motions or at preliminary hearings. “The jury system and trial by jury is still a very viable means of dispute resolution,” says Dennis Drasco, a partner with Roseland’s Lum, Danzis, Drasco & Positan. He says his committee will put together a task force next year to see if there is a problem and, if so, come up with an action plan. Drasco points to the increased expense of trials — attorney fees, expert fees and disruption of a client’s business — as a disincentive. He also questions whether judges and mediators are exerting so much pressure to settle cases that parties feel coerced. His section will consider drafting model standards for mediators, he says. Another factor that might be reducing federal trials in New Jersey is that plaintiffs in employment cases, a category more likely to be tried, overwhelmingly file in state court because state law is so favorable, says Drasco.

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