RANT & CHAT - No Politics

[ksquared]

Howdy Novo...

Chilly, gray and dank on this end. Telecommuting while the car is being tuned... 182000 plus miles... going for 300000. <g>

Clever mixing trick on the martini.

At the risk of raising your BP... saw this in today's Newark Star Ledger. Made the front page. I found it very interesting. Guess the trend saves a lot of tax dollars but wonder how much it is costing us as folks (read corporations) settle out of court. Also find the implications as to the development of common law intriguing.

Remain in good health... It's a beautiful thing.

With legal profession flourishing, trials fade
Study raises concern about court system
Wednesday, November 12, 2003
BY KATE COSCARELLI
Star-Ledger Staff

Almost every aspect of the legal profession is booming.

Never have more attorneys been registered to handle lawsuits than now. The number of laws on the books is growing. Legal costs are skyrocketing, and attorneys are becoming increasingly specialized.


But trials -- the proceeding at the core of the American justice system -- have decreased dramatically in the last 40 years, according to a new study of federal court cases by the American Bar Association.

Many judges and lawyers had long believed that such a decline was happening, but few realized the drop was so steep.

In 1962, almost 12 percent of the federal civil cases were resolved by trial. Last year, even though five times as many cases were handled, only 1.8 percent were trials. The study also shows that the drop seems to be gathering momentum. Since 1985, the number of federal civil trials has declined by more than 60 percent, the study found.

The American justice system's "heart and soul" is based on the notion that justice must be seen to be done, said Stephan Landsman, a law professor at DePaul University in Chicago who helped coordinate the project. Trials provide that transparency, he said.

"We are playing with dynamite, because it is really about the public seeing that there are fair proceedings and that a fair consideration of evidence is taking place. ... That's what democracy is about," Landsman said.

Yet others are unperturbed by the findings and say the public is not hurt by the decreasing number of trials. The courts are meant to be a place to fix problems, rather than to simply conduct trials.

"The judiciary is not so much an institution that tries cases so much as it is an institution that resolves disputes," said Jane Castner, assistant director for civil practice at the state Administrative Office of the Courts. "And there are lots of other ways to resolve disputes."

The study cites a number of causes for the decrease in trials. Legal representation is more expensive and trials more complex. And mediation and arbitration are increasingly used to resolve disputes. Federal courts and some states such as New Jersey even require that certain cases go through court-sponsored mediation or arbitration before the notion of a trial is considered.

A third factor, the study argues, is a change in the ideology of jurists. Many judges now see themselves as problem-solvers, and some say a case that reaches trial is a failure, said Marc Galanter, a law professor at the University of Wisconsin and author of the study.

Some judges, like William Young, chief of the federal District Court in Massachusetts, object to that philosophy.

"There is nothing wrong with the word 'management.' Any judge must do it, but judges should be trying cases every day," said Young, who on days when he doesn't have a local case will hear cases from other districts using video-conferencing.

The study, "The Vanishing Trial," will be the sole focus of a two-day conference of the American Bar Association in San Francisco next month. Lawyers, judges and scholars will discuss almost 20 papers written to accompany the findings. At the conclusion of the conference, the study will undergo final revisions and is expected to be published next year.

The study is the result of nearly three years of work. Much of the information came from a time when there were no office computers, so the data had to be entered by hand into a database for analysis.

In 1962, the federal courts disposed of 50,300 civil cases. Of those, about 5,800 ended with a trial. In 2002, almost 259,000 civil cases concluded, but only 4,600 were trials, according to a working version of the study provided by the American Bar Association last week.

Likewise, the number of criminal trials has dropped about 30 percent to about 3,600 in 2002, the study found.

Most of the cases that do get to trial in the federal court are class-action suits, prisoner petitions and civil-rights matters, the study found.

The study says state courts are showing a similar decline in trials, but it did not break out numbers for individual states. New Jersey court data were provided by the state judiciary at the request of The Star-Ledger.

Those records show that in 1985, 5,410 trials were completed in New Jersey. During 2003, there were 3,517 jury and bench trials.

The study raises concerns about the long-term ramifications of vanishing trials.

With fewer people taking part in the trial process, there is less direct scrutiny of the justice system by litigants and jurors. Without that participation, the process loses credibility and is weakened, the study warns.

"Our jury system is premised on the notion that the wisdom of the many is greater than the wisdom of the one. We are losing that wisdom," said Patricia Refo, a Phoenix lawyer who is chair of the ABA's litigation section, which sponsored the study.

Fewer trials also could lead to a stagnation in the development of common law, the body of law that comes from court decisions rather than statutes, the study says.

Without a trial, there is less of a detailed fact-based record for other lawyers and judges to examine when working on a case with similar issues. Instead of testimony and cross-examinations, briefs and other paperwork stand as evidence.

"The trial disappeared in a mound of paper," Landsman said. "It's only through the cross-examination that you really get at why people might be biased. If you take away the richness of the factual setting, you lose that nuance, that humanness, and that seems to me to pose a threat to the continuing development of common law."

However, others, including U.S. District Chief Judge John Bissell, who sits in Newark, believe the courts and judges exist to resolve disputes.

There will always be a need for trials in cases where the legal issues are tangled, the factual issues complex or one party has unrealistic expectations about the case, judiciary officials said. But in the majority of matters, other ways exist to solve disputes, he said.

"We should realize (that) that really is our higher calling here, rather than our own personal satisfaction that would come from conducting a trial," Bissell said.

Many say the courts could not function if there were more trials. There are simply not enough judges to hear many more cases.

In New Jersey, state judiciary officials said the public is well-served, even if the number of trials is shrinking.

"If you can step into the process earlier, you have a good chance of saving everybody some money, saving everybody some agita ... and you can possibly bring about a resolution that satisfies everybody, not maybe fully, but nobody need necessarily walk away a loser," Castner said.

http://www.nj.com/news/ledger/index.ssf?/base/news-11/1068618775119240.xml