Fisher Mediation
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Case Management As An Institutional Force

by Paul Fisher, Edited by Judith Stalk

“The Vanishing Trial” was one of the most reflective and insightful segments of the April 2004 CPR Institute for Dispute Resolution Conference. We, as litigators, and as neutrals, have noticed changes in the number of cases resolved in mediation. Fewer cases are going to trial. In luminescent detail “The Vanishing Trial” brought into clear focus a phenomenon that has caused a dramatic cultural change in all aspects of the conflict and dispute resolution system. The phenomenon has had its impact upon judges, attorneys and parties. The presentation and dialog at the CPR Conference was chaired by the author of an in-depth study, Marc Galanter, Professor of Law at University of Wisconsin and the London School of Economics and Political Science, who cautions that the information he is providing is a work in progress, preliminary in nature and “should not be circulated or used without appropriate caveats.” The study covers the period from 1962 to 2003 in federal courts and preliminary views of some state court data, including certain data from California. (Footnote 1) What follows is a brief summary of the study and presentation. All information and quoted material is from “The Vanishing Trial”.

By most any measure, during the study period, the number of new lawyers and case filings had mushroomed. Yet, in most forums “the absolute number of trials (had) undergone a sharp decline.” The percentage of dispositions by trial went from 11.5% in 1962 to 1.8% in 2002. The greatest reduction of trials began to take place in the mid- 1980s, following revisions to the Federal Rules granting increased powers to U.S. District Court Judges in the area of case management.

Author Marc Galanter concludes courts are much more involved in the early resolution of cases than they used to be. Once U. S. District Court judges started taking an active role in case management, more cases were disposed of, and earlier. Courts have become increasingly hostile to devoting resources to trial. There is a very strong movement toward civil case management. Judges prefer managing cases rather than trying them. A related study (Footnote 2) found judges increasingly favor motions for summary judgment. The study sampled cases in six metropolitan districts, including the Central District of California. Three and seven-tenths, 3.7%, of cases were disposed of by MSJ in 1975 compared to 7.7% in 2000. Judges increasingly refer cases to ADR, in particular to mediation. “Case management has become on institutional force.”

As a result of the mid-1980s amendments to Rule 16 of the Federal Rules, there have been institutional changes in the courts. Judges have become intensely desirous of managing their case load, and in a manner that drives cases to resolution before trial. Trial judges have more discretionary power in order to resolve cases. It now is, and has been since the mid-1980s a part of the judicial culture to promote settlement and serve as case managers.

Clients likewise have had a dramatic cultural and attitudinal change in respect to trial. It is not surprising to any of us reading this that trial has become increasingly costly, technical and more complex. Juries are “risky, arbitrary and out of control.” This reinforces strategies of settlement to avoid trial. Corporate clients see increased risk, and prefer not to have counsel go to trial, thus avoiding the enormous costs of discovery and trial.

Attorneys are a significant part of the trend toward pre-trial disposition. They follow the leads of their clients. Disposition is a major part of their practices, as is the increased use of ADR. Since only 1.8% of cases are tried, there are fewer and fewer seasoned trial attorneys. Likewise, there is a disinclination of the vast majority of attorneys to try cases due to lack of experience in trial. The lawyers who do not customarily try cases see a greater personal risk in trial. Further, parties do not want to leave their cases to be tried in the hands of inexperienced trial counsel.

The time at which settlements occur has changed. Historically, cases used to settle “on the court house steps.” The phenomenon which has driven the conflict and dispute resolution process now causes cases to settle much sooner. An increasing number of disputes reach mediation before suit is brought, the result of ADR provisions in the contract between the parties, or due to cultural shift among attorneys and clients.

The combined negative attitude of the courts, clients and most attorneys will continue the rate of decline in use of trial, and increase the rate of use of ADR.

Endnote:

  • 1. This Galanter study was prepared and first presented as a working paper at the ABA Litigation SectionÕs Symposium on the Vanishing Trial, in San Francisco, December 12-14, 2003. Co-presenters at the CPR Conference were Daniel J. King of Atlanta and Patricia Lee Refo of Phoenix.
  • 2. Arthur R. Miller, “The Pretrial Rush to Judgment: Are the ‘Litigation Exposition’ ‘Liability Crisis,’ and Efficiency Cliches Eroding our Day in Court and Jury Trial Commitments,” 78 N.Y.U. L.Rev. 982 (2003).