Academic journal article
By Langbein, John H.
The Yale Law Journal , Vol. 122, No. 3
INTRODUCTION: THE VANISHING TRIAL I. COMMON LAW CIVIL TRIAL: ORIGINS AND ATTRIBUTES A. The Shaping Role of the Jury System B. Defining Traits 1. Concentration 2. The Pretrial/Trial Division 3. Bifurcation and Jury Control 4. Orality, Immediacy, and Public Access 5. Partisan Investigation and Presentation of Fact; Cross-Examination II. EQUITY: NONTRIAL AND NON JURY CIVIL PROCEDURE III. THE FEDERAL RULES: THE PRETRIAL BECOMES THE NONTRIAL A. The Flight from Pleading B. Party-Conducted Discovery: Overcoming the Investigation Deficit 1. The Regime 2. Paper and Electronic Trails: The Changing Character of Evidence 3. Displacing Trial 4. The Drawbacks to the Discovery Revolution: Expense and Abuse C. Judicial Case Management 1. The Pretrial Conference 2. Managerial Judging and Complex Cases 3. Promoting Settlement a. The Danger of Coercion b. The Contrast with Nontrial Criminal Procedure D. Settlement Dynamics E. Summary Judgment CONCLUSION: WHY CIVIL TRIAL VANISHED
INTRODUCTION: THE VANISHING TRIAL
A striking trend in the administration of civil justice in the United States in recent decades has been the virtual abandonment of the centuries-old institution of trial. As late as 1936, on the eve of the promulgation of the Federal Rules of Civil Procedure, a fifth of all civil cases that were filed in the federal courts were resolved at trial. (1) The rest terminated either in the pleading and motions phase for failure to state a cause of action, or were settled before trial. That one-fifth trial rate was "a minority but a very substantial minority. Civil practice was still in significant measure a trial practice." (2)
By 1940, the proportion of cases tried declined to 15.2%. (3) In 1952, the figure was 12%; in 1972, 9.1%; in 1982, 6.1%; in 1992, 3.5%. By the year 2002, only 1.8% of federal civil filings terminated in trials of any sort, and only 1.2% in jury trials. (4) At the state level, where most civil litigation takes place, (5) trials as a percentage of dispositions declined by half between 1992 and 2005 in the nation's seventy-five most populous counties. (6) Jury trials in 2002 constituted less than one percent (0.6%) of all state court dispositions. (7) Thus, in American civil justice, we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become "vanishingly rare." (8) This Article explores how and why this movement away from trial occurred.
In functional terms, from the perspective of the litigants, a civil procedure system serves two connected objectives: investigating the facts of the case and adjudicating issues of law or fact that remain in dispute. Of these functions, investigating and resolving questions of fact is by far the more important. Sir William Blackstone, the English jurist who wrote in the 1760s, underscored the centrality of fact issues in an arresting passage: "[E]xperience will abundantly show," he said, "that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of." (9) Was the traffic light red or green? Was the signature forged or genuine? Ascertain the facts in such a dispute, and the law is usually easy--so easy, indeed, that the parties will commonly settle the case, or the court will be able to dismiss it as groundless. Thus, the better a civil procedure system is at investigating and clarifying the facts, the less it will need to take cases to adjudication.
Alas, investigating the facts was for centuries a critical weakness of civil procedure at common law, for reasons connected to the central role of the jury system. Part I of this Article emphasizes that, apart from pleading, the common law provided no means other than trial to probe matters of fact, and that pleading was preoccupied with keeping order among the writs and circumscribing the role of the jury. …