TPKATVT is back.   It actually hadn’t gone away, though I hadn’t seen signs of it for a while.

TPKATVT, aka The Phenomenon Known as the Vanishing Trial, got started by a 2004 report written by Professor Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts.  Each year from 2005 through 2013, there were about 80 to 100 articles  with the term “vanishing trial” in Westlaw’s Law Reviews and Journals database.   The pace of publication declined a bit after that, with only 51 articles last year.

I coined the term TPKATVT in my article with the snappy title, Shifting the Focus From the Myth of “The Vanishing Trial” to Complex Conflict Management Systems, or I Learned Almost Everything I Need to Know About Conflict Resolution From Marc Galanter.  I wrote:

“To say that ‘The Vanishing Trial’ is a myth is not to suggest that the facts or analysis in Professor Galanter’s report are fictional or inaccurate.  Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts.  The report documents an apparent paradox:  the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number of cases filed, and the amount of published legal authority.  The most stunning fact is that the civil trial rate in the federal courts steadily dropped from 11.5 percent in 1962 to 1.8 percent in 2002.  Even as the number of federal cases filed grew, the absolute number of trials decreased.  If the report was titled, ‘Trial Rates Continue Longstanding Decline, Especially in the Federal Courts,’ there would be much less to quibble about.  Of course, this would not have the mythic quality of TPKATVT.  This refers not to the definition of myth as untruth but rather as a ‘popular belief or story that has become associated with a person, institution, or occurrence, especially one considered to illustrate a cultural ideal.’  This article argues that TPKATVT is a misleading and counterproductive myth and suggests alternative myths and methods for addressing the ideals embodied in TPKATVT.” (footnotes omitted)

I argued, “This myth resonates with nostalgia for a ‘golden age of trials,’ and [legal historian Lawrence] Friedman argues that ‘[w]hat has vanished, then, is not only the trial in terms of numbers, but also the trial as it should be, the classic trial, the trial of the good old days.’”

This illustrates what BFOI Carrie Menkel-Meadow has aptly called “litigation romanticism.”   There certainly are good reasons to have trials in some cases, but this longing for dramatic trials overlooks the many practical reasons why parties, lawyers, and courts generally prefer settlements.  Anxiety over disappearance of trials may seem particularly odd given all the problems associated with going to trial. Indeed, I argued that TPKATVT could be reframed as “the amazing success of judicial case management.”

It also reflects a proclivity for promoting particular dispute resolution procedures (e.g., trial, mediation, collaborative law) as inherently desirable on the assumption that they uniformly advance certain goals.  I argue that, instead of promoting particular procedures, we should work to develop conflict management systems that offer disputants a choice of several different desirable procedures.

Part of the problem with TPKATVT is that those who bemoan the impending extinction of trials often don’t carefully consider the causes or consequences of the declining trial rate or offer practical solutions to address what they see as the problems.

You might want to read another snappily-titled article, How Much Justice Can We Afford?: Defining the Courts’ Roles and Deciding the Appropriate Number of Trials, Settlement Signals, and Other Elements Needed to Administer Justice, where I considered the likely causes, consequences, and potential remedies for problems associated with declining trial rates.

I mention all this now in response to a recent post on the Institute for the Advancement of the American Legal System blog entitled “Reversing the ‘Vanishing Jury’ Trend.”  Unlike many analyses, it does analyze causes of the trend, focusing plausibly on increased burden of discovery and (not-as-plausibly) increased use of ADR.  The post advocates the use of “proportionality” rules to limit the amount of discovery in some cases.

As I previously wrote, I have mixed feelings about proportionality rules.  They sound good in theory but others, including FFOI Jean Sternlight, worry that they would disadvantage weaker parties. I haven’t analyzed the actual problems of discovery or impact of such rules and I don’t have a strong opinion about them.

It does seem odd, however, to suggest adopting proportionality rules as a way to increase the number of jury trials.  If adoption of such rules leads to increased jury trials, that might or might not be a positive development.  But jury trials, like all other DR procedures, should be a means to an end rather than an end in themselves.