Continental Parlor 8 Hilton San Francisco and Towers Ballroom Level
Joint Program of Sections on Civil Procedure and Litigation Wendy Collins Perdue, Georgetown University, and Chair, Section on Civil Procedure Elizabeth B. Cooper, Fordham University, and Chair, Section on Litigation David E. Steinberg, Thomas Jefferson School of Law, Program Chair
Litigators in a Legal System Without Trials
Moderator:
David E. Steinberg, Thomas Jefferson School of Law
Speakers:
Richard A. Boswell, University of California, Hastings Marc S. Galanter, University of Wisconsin Kevin C. McMunigal, Case Western Reserve University Judith Resnik, Yale Law School
In theory, civil litigation is directed toward the resolution of each case at a trial. In practice, civil trials almost never occur. Over the past 25 years, the frequency of civil trials has declined dramatically. In the federal court system, less than five percent of civil cases reach a trial.
The virtual disappearance of the civil trial raises a variety of issues. First, elaborate pre-trial processes, including discovery, have been created to insure the fairness and accuracy of trial results. But if a trial never will occur, one must reassess whether time-consuming and expensive pre-trial procedures really will improve the fairness of litigation outcomes.
In addition, the disappearance of civil trials inevitably must effect how civil attorneys approach their work. If a trial never will occur, then discovery and other pre-trial preparation may have few ultimate consequences. Civil litigators who spend a large proportion of their time on such tasks ultimately must question the relevance and meaningfulness of their work. The decline in civil trials ultimately raises serious questions about the structure of the civil justice system, and about the morale of the attorneys who work in this system.