Civil Trials as "Dodo" Birds: From "Vanishing" to "Diminished"

Empirical work, including important scholarship by, among others, Marc Galanter (Wisconsin), has persuasively documented a steady decline of civil litigation concluded by formal trial. And this "vanishing trial" trend straddles federal and states courts. In a recent paper, The Diminished Trial, Nora Freeman Engstrom (Stanford) nudges this research a bit further by taking an empirical dive into what the pool of remaining civil trials look like. Engstrom isolates two key trends: the steep decline in "protracted" trials (trials lasting 20 or more days) and the concurrent sharp rise in "really short" trials (those lasting one day or less). And the interaction of these two trends prompts Engstrom to characterize civil litigation today as "diminished. The paper's abstract follows.

“Civil trials, many have noted, are going the way of the dodo bird. Federal courts conducted half as many civil trials in 2016 as they did in 1962, even while disposing of over five times as many civil cases. A similar trend is apparent in the states. Of course, this trajectory has not escaped scholarly attention. Barrels of ink have been spilled investigating, eulogizing, and variously, mourning or lauding, the “vanishing trial.” But, this is far from the whole story. This Article shifts the conversation to a different, though related, phenomenon: not the disappearance of the civil trial, but rather, its downsizing. I take as my point of departure two puzzling trends. First, since 1983, “protracted” trials, which is to say trials that last over 20 days, are way down. There were more than 100 such trials per year in the late 1980s, but in 2016, we only saw only 13. Second, over the same timespan, really short trials, which is to say trials lasting one day or less, are up. Indeed, starting in 2007, and every year since, the majority of all federal civil trials have wrapped up in only one day. This paper seeks to highlight these trends, which have so far escaped scholarly attention, and also to conduct a preliminary investigation into the potential causes and consequences.”