Summer 2014
A Grin without a Cat:

The Continuing Decline & Displacement of Trials in American Courts

Authors
Marc S. Galanter and Angela M. Frozena
Abstract

Over the past half-century, the number of cases entering American federal and state courts has multiplied. But, largely unobserved by the public, the percentage of those cases that are disposed of by trial has steadily decreased. In recent decades, as the increase in filings has leveled off but the percentage of cases reaching trial has continued to fall, the absolute number of trials has decreased as well. Conducting trials is a shrinking portion of what judges do. The effects of this turn away from trials on judges, on litigants, and on public perceptions of the legal system remain to be explored.

MARC GALANTER, a Fellow of the American Academy since 2003, is the John and Rylla Bosshard Professor Emeritus of Law and South Asian Studies at the University of Wisconsin, Madison. His many publications include Competing Equalities: Law and the Backward Classes in India (1991), Tournament of Lawyers: The Growth and Transformation of the Big Law Firm(with Thomas M. Palay, 1994), and Lowering the Bar: Lawyer Jokes and Legal Culture (2005).

ANGELA M. FROZENA is a non-practicing attorney working in the private sector. She received her Juris Doctor from the University of Wisconsin Law School, her Master of Business Administration from the University of Wisconsin-Whitewater, and an Honors Bachelor of Science in Applied Mathematical Economics from Marquette University.

Courts occupy a prominent place in American life. Common expressions such as having one’s “day in court,” “the truth, the whole truth, and nothing but the truth,” and “the jury’s still out on that” reflect this cultural presence. Americans typically link courts and trials: trials are what happen in courts; courts are the places where trials happen. Television news, the ubiquitous Law and Order, and Judge Judy present an unending stream of images of trials.

Together, the federal and state courts take up tens of millions of civil and criminal matters each year. Trials have always made up only a fraction of court proceedings. In the course of the last half-century, however, trials have become a much-reduced fraction of these proceedings; and, in turn, the courts themselves are the site of a shrinking portion of all trial-like events. During that period, the number of cases brought to the courts by a growing population increased. But in the last decades of the twentieth century, even as court caseloads continued to increase, a smaller and smaller portion of those cases led to trials, so that the absolute number of trials began to decline. These trends are found in federal courts and state courts, in criminal cases and civil cases, and they continue to this day. .  .  .

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