You knew it was coming. You are sitting in a client meeting, explaining the procedure and the underlying issues of the case, but you can almost see the information being mentally filed away as they itch to ask you their first question…or, perhaps, in their mind, the only question. In asking this question, clients are essentially expecting lawyers to predict a future decision made by 12 other people at the end of that increasingly unlikely process we call a trial. Indeed, the odds a particular client’s case will end up being decided by an actual jury are slim to none these days.

Some History

In 1936, just before the creation of our Federal Rules of Civil Procedure, one fifth of all civil cases filed in federal court went to trial. Over the next six decades that number declined at a healthy pace. In 2002, only 1.2% of all federal filings ended in a jury trial. At the state level, the proportion of cases that are resolved in a jury trial has declined to 0.6% of all state court dispositions as of 2002.2 In his article, “The Disappearance of Civil Trial in the United States,” Yale Law Professor John H. Lanbein explains that this dramatic fall in the jury trial as a means of civil case resolution is largely due to the information-gathering nature of our modern discovery process. He recounts how at common law, the trial process served to bring forth all the facts of the case at hand, as there was no formal way to obtain information from an opposing party.

However, since the implementation of the Federal Rules of Civil Procedure, and their subsequently adopted state analogues, the focus of pretrial procedure has shifted from pleading to information-gathering via the discovery process. Through the mechanisms of formal and informal discovery, the facts of a case are typically uncovered and understood by all parties well in advance, thereby negating the need to “see what comes out at trial.” Obviously, such advances in the ability to obtain the relevant facts have discouraged the need to go to trial, and thus increased the rate at which cases settle. As Lanbein explains, “This new procedure system has overcome the information deficit that so afflicted common law procedure, enabling almost all cases to be settled or dismissed without trial.”

The Federal Rules do not contemplate a turning away from the trial system. Rule 38(a) states, “The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate.” Yet, due to our need today for more efficient case resolution from both the courts’ caseload perspective and from our clients’ perspective, settlement has become the dominant method of case resolution.

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Tags: case resolution, Federal Rules of Civil Procedure