Only a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges adjudicate disputes directly by ruling or effectively through other assessments of the parties’ cases. Even as their absolute and relative numbers decrease, trials remain the most visible event in trial courts. The visible trial serves effectively as a guide star. Our findings warrant a fundamental reconceptualization of litigation as primarily about educating parties rather than about trying cases. The assessment theory proposed here views adjudication as a continuous, information-disclosing process that is guided by but not destined for trial. Our evaluation and expectations of the modern justice system should be focused on the effectiveness of judges as teachers.
Tracey E. George & Albert H. Yoon,
The Visible Trial: Judicial Assessment as Adjudication,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss1/5
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