The Diminished Trial

19 Pages Posted: 27 Aug 2018 Last revised: 3 Sep 2018

Nora Freeman Engstrom

Stanford Law School

Date Written: April 15, 2018

Abstract

Civil trials, many have noted, are going the way of the dodo bird. Federal courts conducted half as many civil trials in 2016 as they did in 1962, even while disposing of over five times as many civil cases. A similar trend is apparent in the states. Of course, this trajectory has not escaped scholarly attention. Barrels of ink have been spilled investigating, eulogizing, and variously, mourning or lauding, the “vanishing trial.” But, this is far from the whole story. This Article shifts the conversation to a different, though related, phenomenon: not the disappearance of the civil trial, but rather, its downsizing. I take as my point of departure two puzzling trends. First, since 1983, “protracted” trials, which is to say trials that last over 20 days, are way down. There were more than 100 such trials per year in the late 1980s, but in 2016, we only saw only 13. Second, over the same timespan, really short trials, which is to say trials lasting one day or less, are up. Indeed, starting in 2007, and every year since, the majority of all federal civil trials have wrapped up in only one day. This paper seeks to highlight these trends, which have so far escaped scholarly attention, and also to conduct a preliminary investigation into the potential causes and consequences.

Keywords: Law, Litigation, Civil Procedure, Courts, Judges, Legal Profession, Civil Law, Trial Practice, Vanishing Trial, Trial Time Limits

Suggested Citation

Engstrom, Nora Freeman, The Diminished Trial (April 15, 2018). Fordham Law Review, Vol. 86, No. 2131, 2018. Available at SSRN: https://ssrn.com/abstract=3232185

Nora Freeman Engstrom (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
6507368891 (Phone)

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