Monday, May 28, 2007



ADAM LIPTAK, NEW YORK TIMES - Trials are on the verge of extinction.
They have been replaced by settlements and plea deals, by mediations and
arbitrations and by decisions from judges based only on lawyers' written
submissions. 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.

Instead of hearing testimony, ruling on objections and instructing
jurors on the law, judges spend most of their time supervising the
exchange of information, deciding pretrial motions and dealing with
settlements and plea bargains.

There is, of course, nothing wrong with settlements, at least when they
are the product of reasoned and sensible compromise between evenly
matched adversaries. But trials are not disappearing simply because more
cases are being settled. Instead, they are increasingly being replaced
by summary judgments, in which judges evaluate evidence submitted to
them on paper.

"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.

Professor Galanter elaborated in an interview. "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.

The movement away from jury trials is not just a societal reallocation
of resources or a policy choice. Rather, as Judge Young put it, it
represents a disavowal of "the most stunning and successful experiment
in direct popular sovereignty in all history."
Indeed, juries were central to the framers of the Constitution, who
guaranteed the right to a jury trial in criminal cases, and to the
drafters of the Bill of Rights, who referred to juries in the Fifth,
Sixth and Seventh Amendments. Jury trials may be expensive and
time-consuming, but the jury, local and populist, is a counterweight to
central authority and is as important an element in the constitutional
balance as the two houses of Congress, the three branches of government
and the federal system itself.


No comments: