May 22, 2013 Articles

Vanishing Trial Skills

Effective and persuasive person-to-person skills are still fundamental even in our instant-communication environment.

By Hon. Charles S. Coody

We profess to be litigators and trial judges. But how can we comfortably say that when we do not try cases to juries? In fact, some commentators suggest that jury trials are on the verge of extinction. Marc Galanter and Angela Frozena, “The Continuing Decline of Civil Trials in American Courts.” The statistics from the federal courts certainly support that claim. From 2008 to 2012, the federal district courts terminated 1,924,316 civil and criminal cases. Of those, 83,201 cases were terminated by trial. Of all those trials, only 10,769 were terminations by civil jury trials, an astounding 0.56 percent or slightly more than one-half of one percent of all terminations.

Many possible reasons for this phenomenon have been suggested elsewhere. First, there is Galanter’s seminal 2004 study: The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Professor Arthur Miller has elegantly recounted many of the reasons why we never get to trial, in a keynote address presented at the University of South Carolina School of Law. And in a compelling article, Judge Joseph Anderson laments the demise of jury trials. They have done such a wonderful job I will not revisit their suggestions about the multitude of reasons for the decline in jury trials, which range from summary-judgment practice to alternative-dispute-resolution practices as well as various procedural hurdles, all of which make litigation increasingly expensive and time-consuming.

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