Yale University law professor John Langbein recently published an article
in which he proclaimed that civil trials in the United States have "disappeared," a change that he attributed to reforms made decades ago to the Federal Rules of Civil Procedure. The reforms were designed to make trials run more smoothly by encouraging parties to do more work beforehand. But according to Langbein, the reforms worked so well that most litigation activity now happens in the pretrial process. The parties have already turned over so much evidence, and the judges have already made so many rulings, that everyone has a good idea of how the trial itself will turn out. The result is that parties are far more likely to settle today. (You can find Langbein’s article in the December 2012 issue of the Yale Law Journal, and read an interview with him on our Am Law Litigation Daily website, litigationdaily.com.)
At first glance, the case that we’re examining in this issue’s cover story doesn’t seem to fit Langbein’s thesis — Monsanto Company’s suit against E.I. du Pont de Nemours and Company did go to trial. The jury returned a verdict ordering DuPont to pay $1 billion for infringing Monsanto’s patent for soybean seeds that have been genetically modified to be resistant to herbicides. But as writer Anne Stuart explains, the most important developments in the case happened much earlier. Judge E. Richard Webber issued one pretrial order in which he found that the companies’ licensing agreement restricted the ways in which DuPont could use Monsanto’s patented seed traits, and another order finding that DuPont always knew about those restrictions. Before trial, Webber issued another order in which he ruled that DuPont couldn’t tell jurors that it had dropped its plans to sell seeds using Monsanto’s technology. These rulings not only contributed to DuPont’s huge trial loss, but likely played a role in the company’s decision to abandon its appeal of the verdict and strike a deal with Monsanto instead. You can read Seeds of a Settlement.
Pretrial activities also play a large role in the cases that we look at in our survey of mortgage-backed securities (MBS) litigation, Your Payment Is Overdue.  Isaac Gradman analyzes the $8.5 billion settlement that Bank of America Corporation is proposing to pay in order to settle claims by investors who suffered losses on securities issued by Countrywide Financial Corp., which BofA acquired in 2007. BofA agreed to the settlement even though the investors never filed a suit — the case is only in court now because the parties are seeking judicial approval of the settlement. In a companion piece on the suits that the Federal Housing Finance Agency brought against MBS – issuing banks, Jan Wolfe explains that whether the FHFA can proceed with its cases will depend on how an appellate court rules on a pretrial decision on timeliness by a lower court. In the third article in this package, Wolfe discusses a case that did go to trial — a suit by an MBS insurer against an MBS – issuing bank — but also explains how this verdict will likely lead other defendant banks to settle claims by insurers rather than risk trial.
All of these cases emphasize the degree to which litigation has become less and less about trials. In our interview with Langbein, he said that while "it’s a good idea to get a little trial experience," he wouldn’t bemoan the fact that litigators today have less trial experience than they used to: "That’s a reflection of the world as it is and is going to remain."