Where Have All the Trials Gone?


Fordham’s Stein Center for Law and Ethics welcomed a distinguished group of 16 legal scholars from across the country to its annual ethics colloquium on October 21 to analyze “Civil Litigation Ethics at a Time of Vanishing Trials.”

The colloquium’s participants presented papers and engaged in discussion about the impact litigants’ increased time spent on discovery, settlements, and alternative dispute resolution mechanisms—as opposed to trials—is having and should have on norms of zealous advocacy, a litigators’ work outside trial, adversarial conduct, the popular image of litigators, and legal training and regulation. The papers outlined during the event will be featured in the spring 2017 issue of the Fordham Law Review.

In his opening remarks, Fordham Law School Dean Matthew Diller praised Professor Bruce Green, director of the Stein Center, and the Fordham Law Review for organizing a colloquium around the legal ethics of vanishing trials, a timely matter with the potential to “change the shape of the legal system.”

Fordham Law Professors Howard M. Erichson, Russell Pearce, and Benjamin C. Zipursky joined Green in offering insights to presenters during the daylong event. Erichson also shared his in-progress paper titled “The Lawyer’s Role in Settlement in the Absence of Anticipated Adjudication.”

Federal court case filings have flattened in the past 15 years, hovering between 300,000 to 350,000, Yale Law Professor Judith Resnick reported, as a means of framing the day’s conversation. The numbers portray a much different reality than the “exuberant description of booming federal courts” that resulted in the building of large courthouses such as the Thomas F. Eagleton U.S. Courthouse in St. Louis, Resnick added.

A substantial number of federal filings result from multi-district litigation (i.e., asbestos suits in the 1990s) and around 30 percent are pro se cases.

“Courts are deeply dependent on aggregation to function,” Resnick said. “It’s the basic way to get an infusion of resources into the system.”

Public perception is a more difficult resource to obtain. The limited number of films on civil trials, as compared to criminal trials, creates a mass belief that civil cases are dense, unentertaining affairs, said Professor Taunya Lovell Banks of the University of Maryland’s Carey School of Law. This has wider ramifications, such as prospective jurors showing reluctance to serve in civil trials.

The truth is most civil and criminal cases conclude long before the trial stage.

“We still teach from a trial perspective,” Banks said. “We teach our students to be trial lawyers and there are going to be no trials.”

Erichson responded that one reason criminal juries are illustrated more than their civil counterparts is “the fundamental constitutional right to a criminal jury.” Civil trials can illustrate an underdog fighting a powerhouse corporation, but criminal courts play “a very special role” in our society, he added.

The day’s second bloc of presentations focused on “Access to Justice for Individuals with Modest Means.”

Sheer economics make it difficult for people injured by lawyers to hire an experienced legal malpractice attorney unless their potential damages figure more than $200,000-$300,000, Texas A&M Law Professor Susan Fortney said. She raised the prospect of the United States following the lead of countries such as England and Wales, who have a legal ombudsman to investigate malpractice grievances against lawyers.

“The worry is the more you expand legal malpractice law in a way that benefits plaintiffs, the more expensive it is to be a lawyer and this makes it more expensive to afford lawyers,” noted Zipursky, adding this debate is also happening in the medical field.

If more attorneys were to carry this insurance, it could conceivably lead to more suits, in which lawyers litigated against other attorneys they believed had insurance, as a way of driving monetary verdicts higher, Zipursky explained, predicting this could make malpractice insurance more expensive.

Other presentation themes included “Lawyers & Aggregate Litigation,” “Pretrial Processes: Discovery & Bellwether Settlements,” “Special Rules for Litigators Outside Litigation,” “Vanishing Trials, Vanishing Adversarialism and Vanishing Lawyers,” and “Movement Lawyering.”


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