Outside Publication

Going, Going, But Not Quite Gone

Winter 2017

This article documents and quantifies the continuing disappearance of trials. It confirms that today a trial is very much the exception, rather than the rule, regardless of jurisdiction (federal or state), type of case (criminal or civil), type of trial (bench or jury), or type of claim (contract, tort, etc.). The article also outlines the principal reasons why trials have diminished and some of the resulting consequences. Although trials are not likely to disappear altogether, they seem virtually certain to remain on the endangered list for years, and perhaps forever, primarily because Supreme Court decisions have made case disposition by motion more likely, and parties in both civil and criminal cases are increasingly drawn to what they perceive to be readily available, less expensive, and more attractive alternatives.

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