The sad truth is that these are hard times for would-be Atticus Finches. The trend has left practitioners pondering where the next great generation of trial attorneys will be forged if not in the courtroom. Arbitration and mediation hearings?
Alternative dispute resolution is just one epitaph that may end up on the American trial's tombstone. Long criminal sentences, skyrocketing costs and even technology can share in its demise, according to trial attorneys.
An updated study due soon by legal scholar Marc Galanter, who has been charting trial declines for years, finds the trend unremitting. He noted only about 1 percent of federal cases go to trial now, and the number of state court trials also have fallen off the cliff.
"There is not much lower for it to go," said Galanter, a professor emeritus at the University of Wisconsin School of Law. "Whether we are coming to the end of the trial as an institution, that remains to be seen."
Galanter's newest article on the decreasing number of trials will appear in the magazine Daedalus, the Journal of the American Academy of Arts and Sciences, in the summer issue devoted to the topic of courts.
The most reliable data available comes from federal courts, he said.
In 2012, 3,211 civil cases went to trial nationally compared to 5,802 in 1962, a drop of 44 percent, despite increases in case filings."In other words, the ratio of trials to filings in 2012 is only about one-12th what it was 50 years earlier," Galanter wrote.The Wilkie D. Ferguson Jr. Federal Courthouse in Miami is hardly bustling these days. U.S. District Judge Federico Moreno said it's all relative, noting he was in trial at the time.Arbitration has indeed cut down on federal civil trials, and sentencing discretion has contributed to a similar decline on the criminal side, he said."The numbers have gone down since I started," said Moreno, who took the bench in 1990. "We probably had too many trials. The first year I had like 50 jury trials."
Maybe Rumpole should start saying: See you at mediation.