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‘Trial’ Lawyers Become A Thing of the Past

Author / Coordinator: Michelle Lore
Minnesota Lawyer
July 2008

In the last decade, the percentage of civil cases actually tried has dipped by more than a third.
Lawyers are taking fewer cases to trial than ever before. In fact, in the last decade alone the number of civil cases tried in Minnesota declined by 35 percent.
At the same time, the number of civil case dispositions continued to climb, meaning that more and more cases are being resolved outside the trial process. (Trials now occur in less than four percent of civil cases.)
The dramatic downward trend in civil trials holds true for other jurisdictions as well. The Bureau of Justice Statistics, a division of the Department of Justice, performed a study of civil trials in state courts and found that the number of civil trials dropped by 47 percent between 1992 and 2001.
“It’s a profound change for that portion of the legal profession who like to call themselves trial lawyers,” said Minneapolis personal injury attorney James R. Schwebel.
Rise in ADR
Practitioners contend that the downward trend in the number of civil trials is directly attributable to the rising use of alternative dispute resolution.
“There’s definitely a marked decline in civil litigation trials that can be attributed to the success of ADR,” Schwebel told Minnesota Lawyer.
He estimates that between 80 and 90 percent of the cases pursued by his firm are resolved during or shortly after a mediation session. “There’s a new profession of professionals who truly know how to defuse a situation and find commonality with litigants,” he said.
Minneapolis personal injury litigator Mark D. Streed said that in the last decade ADR has been refined and become more effective in getting cases resolved.
“Lawyers are more respectful and confident in the concept of ADR,” he said. “It’s a good opportunity to try to get a fair resolution without all the extra time and expense.”
Rochester attorney Charles Bird added that cases with strong liability and legitimate damages should be resolved before trial. “If it’s a good case, ADR takes over and it gets settled.”
Minneapolis IP attorney Jan Conlin, vice chair of the Minnesota State Bar Association’s Civil Litigation Section, attributes the increased use of ADR in part to the underfunding of the judiciary. She said that the civil docket is being crushed by the criminal docket, which leaves courts with less time to devote to civil trials.
The result, according to Conlin, is that more people are opting for other ways to resolve their disputes, like mediation and arbitration, which are generally quicker.
Money issues
Practitioners say that the decreasing number of civil trials can also be attributed to the expense of going to trial.
“Cost is a factor,” said Minneapolis products liability attorney George W. Soule. “The cost of litigation is high.”
Bird pointed to the expense of experts as a major factor in the high cost of trial. “Litigation is becoming so expensive that a lot of people are being shut out,” he said.
Fairfax attorney John W. Carey said that’s particularly true in run-of-the mill soft-tissue personal injury cases, where it can cost between $5,000 and $7,500 to try a case. When the case is valued at $7,500 to $15,000 an attorney has to think twice about whether it’s worth it to go to trial, he said.
Soule believes that another factor in the decline of civil trials may be that some litigants are more averse to risk than they were in the late 1990s. He explained that some clients were more willing to try a case based on principle, whereas now they look closely at the dollars and cents involved.
“To some parties, settling a case for a known quantity is more attractive than trying it to some uncertainty,” he said.
Bird opined that the lower number of civil trials could be due in part to the fact that fewer frivolous cases are being filed with the courts.
The trend has not affected every practitioner equally. Some lawyers, such as Streed and Bird, report they are trying just as many cases as they always have.
Even though civil dispositions are up, Streed speculated that personal-injury filings may be down, in part because attorneys are more cautious when screening potential cases. Insurance companies usually don’t settle bad cases, even for low amounts, and juries don’t find in favor of plaintiffs with lousy claims, he said.
No experience
The declining number of civil trials worries some practitioners, who say that with fewer cases actually going to trial, newer lawyers aren’t getting enough courtroom experience.
“The implications of that are real,” said Conlin. “It leaves us with the question of how to ensure the next generation of lawyers develops the skills that have allowed us to be successful in the courtroom.”
According to Schwebel, there are fewer truly skilled trial lawyers practicing law today due to the decreasing number of cases that go to trial. He says it would be a shame if our “warrior culture” disappeared completely in favor of all disputes being decided by someone other than a judge or jury.
“Alternative dispute resolution is efficient and we all love it, but we are paying a price,” he said. “We’re losing a bank of skilled trial lawyers and a culture that says it’s an admirable way of resolving disputes.”
Schwebel explained that if it becomes a statistically remote event to have a jury trial, then people begin to deem it as undesirable. “This is an ominous threat to the system of trial by jury,” he said.
Some litigators predict the trend toward fewer and fewer trials will continue, while others believe it will remain about where it’s at now.
Conlin opined that without proper funding for the courts, the number of civil cases that go to trial will keep declining in the coming years.
Similarly, Schwebel anticipates that the downward trend in civil trials will continue, particularly in jurisdictions like Minnesota that have mandatory ADR.
But Carey believes the numbers will remain steady. “I think ADR has been here long enough, so its impact on the number of jury trials has probably leveled out.”

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