We are celebrating 50 years of Litigation. It began with the birth of the Litigation Section and quickly became the gold standard for the publication of insightful articles about the practice of litigation. And its artwork has excelled as much as the quality of the printed text on the pages of each issue.
As I reflect on Litigation turning 50, I cannot help but recognize the sea changes that have occurred in the practice of litigation since the first issue. How litigators practice their trade has evolved tremendously in this span of time. I am not talking about the extinction of fax machines, the rise of email, or working remotely. I am talking about real changes that have advanced our judicial system and dramatically influenced how we resolve disputes. These are 10 noteworthy developments of the past 50 years that stand as some of the most impactful on the practice of litigation.
After 192 years of an exclusively male U.S. Supreme Court, Sandra Day O’Connor was confirmed by Congress in September 1981 and became the first woman seated on the Court. Justice O’Connor served until 2006, leaving behind a legacy of promoting civility and building personal bonds and relationships between the justices. Known for her dispassionate and meticulously researched opinions, she was a trailblazer paving the way for the five other female justices, including two women of color.
Since their original adoption by the U.S. Supreme Court in 1937, the Federal Rules of Civil Procedure have been amended numerous times. But the amendments in 2015 were more than just a makeover. They reflected dramatic changes to address the perception that litigation had become too contentious, too expensive, and too time-consuming. The rule changes encouraged more cooperation among counsel, focusing litigants on truly necessary discovery and addressing the vast amounts of electronic discovery that had emerged with technological advancement. They also required greater judicial involvement earlier in the case to facilitate increased case management, and proportionality in discovery became a codified principle. Electronically stored information, not even mentioned in the prior version of the rules, was now embraced and was required to be addressed as a part of the earliest discussions with counsel.
The 1979 trial of Ted Bundy was the first to be nationally televised and began an infatuation in America with reality television and true crime stories and led to the emergence of the Court TV network. The trials of Jeffrey Dahmer, the Menendez brothers, and William Kennedy Smith would follow as televised courtroom drama, but none compared to the eight-month spectacle of the O.J. Simpson trial in 1995. Televising court proceedings was barred by the Judicial Conference of the United States in 1972. Fifty years later, trial attorneys performing before a national audience is commonplace, most recently highlighted by the six-week trial of Alex Murdaugh in 2023. But televised trials are not universal, and Judge Juan Merchan exercised his option under New York law to refuse to allow cameras in the courtroom for the 2024 “hush money” trial of Donald Trump.
The judicial system is continuously strained by our litigious society. Law schools freshly mint new lawyers each year. New laws and regulations and a population with an insatiable appetite for justice feed the expansive growth of the caseload in our courts. Congress has reacted, gradually increasing the number of federal judgeships over the past 50 years. In 1974, there were 525 authorized federal judgeships. That number increased by 70 percent to 890 in 2020. Without the expansion of our federal judicial system, it would have been impossible for our courts to deliver just, speedy, and inexpensive resolutions of civil disputes and the “speedy and public trial” required by the Sixth Amendment for criminal defendants. But more judges and funding are needed. As reported by the Administrative Office of the United States Courts, measured in 2023, the average duration of a civil action in federal court that goes to trial is 32 months.
Perhaps no development increased the speed and efficiency of resolving disputes more than the increased use of arbitration and mediation. In the 1980s, companies began widely incorporating arbitration agreements into consumer contracts, with the popularity of arbitration clauses continuing to increase through the 2000s. The spread of arbitration was fueled by court rulings recognizing their enforceability and leading to the 2011 decision by the U.S. Supreme Court in AT&T Mobility LLC v. Concepcion upholding the use of class action waivers in arbitration agreements. At the same time, mediation has also grown. Beginning in the 1970s, courts started using mediation to address crowded court dockets. Now mandatory mediation under court rules and scheduling orders is commonplace. It is reported that approximately 95 percent of personal injury cases settle without going to trial.
Telephone depositions have been around since the 1960s, and telephonic court hearings and conferences have been available for decades, although sparingly used. The pandemic that began in 2020 would forever change the perception of the efficacy of remote depositions, mediations, and judicial proceedings. Depositions via videoconferencing now provide easy access for an individual plaintiff to depose a corporate representative in a distant location. In-house attorneys with tight legal department budgets and time constraints now often prefer to participate in mediations remotely. At the height of the pandemic, there were experiments with completely remote jury trials. While there are many good reasons we have gone back to in-person jury trials, there continue to be arbitration trials before panels of arbitrators done remotely with all witness testimony and argument being presented via video streaming.
Advances in science and technology have led to new evidence in the courtroom, sometimes with dramatic results. The world watched as the onboard computer system of a Chevrolet Suburban was used in 2023 to shatter the alibi of Alex Murdaugh, revealing the time, location, and rate of speed of the vehicle on the evening of the murder of his wife and son. And sound accompanying a video on the cell phone belonging to his son Paul placed Alex Murdaugh at the scene of the murders. Scientific evidence, however, does not always mean better evidence, leading to the 1993 Daubert decision requiring judges to be gatekeepers to ensure only reliable expert testimony is admitted. Artificial intelligence is the new frontier for jury trials, with a potential for use during jury selection and even to assist juries in evaluating evidence, but not replacing the perspective, common sense, and empathy of the human beings serving on the jury.
In 2021, LegalZoom was the trendsetter for self-help legal platforms, allowing consumers to generate their own wills, business formation documents, and other legal documents without engaging a lawyer. Legal assistance without licensed lawyers has gradually started migrating into judicial proceedings. In Utah, licensed paralegal practitioners can assist with many aspects of litigation involving family law, debt collection, and eviction. In Oregon, a limited license allows paralegals to provide legal services in the areas of family law and landlord-tenant law. And between 2012 and 2020, the state of Washington allowed non-lawyers with a special license to provide assistance in family court matters. Debate continues over the competing interests of increasing access to justice and the need to ensure competent legal representation for consumers and businesses.
In 1979, a class action lawsuit filed in the Southern District of New York became the first to seek to hold manufacturers of Agent Orange liable to those exposed to it during the Vietnam War. The doors to mass tort litigation and class actions would be thrown open, as plaintiffs lawyers focused on asbestos, tobacco, and a myriad of toxic torts and allegedly defective medical devices and pharmaceuticals. The mass tort trend has evolved to include data privacy and environmental hazards. The judicial system has had to adapt. Since the time when President Lyndon B. Johnson signed the multidistrict litigation (MDL) statute into law in 1968, MDLs have grown in popularity, with 177 active MDL dockets in 2024. In 2005, Congress passed the Class Action Fairness Act (CAFA) to provide greater access to the federal court system for class action suits with national significance, with notable litigation including the Deepwater Horizon class action and class actions involving “Big Tobacco.” In 2003, before CAFA, there were 2,148 class actions filed in the federal courts. That number grew to 9,705 in 2023.
In the 1980s, DNA started being introduced in criminal proceedings. It would be just a few years later when DNA would become a tool to prove the innocence of wrongfully convicted individuals. In 1992, the Innocence Project was founded to advance criminal justice reform and prove the significance of scientific evidence in trials worldwide. Today, this organization has used DNA and other scientific advancements to prove the innocence and ultimately exonerate more than 250 wrongfully convicted individuals. While DNA has allowed the Innocence Project to undo convictions, the use of DNA also allowed cold cases to be solved. Law enforcement agencies now have the advantage of forensic genetic genealogy, a system that uses DNA databases and genealogical records (e.g., 23andMe and Ancestry) to trace the family tree of the person who left the DNA.
Going forward, we will need another 10 noteworthy changes as we continue to work to solve the high expense of litigation, overcrowded dockets, and the preservation of judicial independence, as well as increasing all types of diversity in the profession so that we better reflect the communities we serve.
