The Vanishing Trial: Are Reasonable Minds To Blame?

We have 24 cases ready for trial in my firm. About half of these are civil cases, and most of those are suits against state actors accused of violating a person's civil rights. That might not sound like a lot to you, but consider that in order to get on that list, a case must either be at a point where plea negotiations have broken down or, on the civil side, where discovery is closed and the case has survived every effort to have it thrown out of court. Standing on line behind the trial ready cases are another 70 or so hoping to get there.

So it matters to me a great deal when a case simply lingers on a list of cases requiring judicial attention, and not getting any. My clients get edgy. "What's going on? they ask. "Nothing," I reply. I once told a client that if they wanted to know why their case lingered in limbo, they should call the judge's chambers. They did.

It matters a great deal when I hear judges talk about the so-called vanishing trial. Want to get it on? Give us a call. We have four lawyers chomping at the bit.

The vanishing trial is a staple of that genre known as the judicial thumb-sucker. Journalists know the phrase. A piece on what it is like to do a job that isn't getting done. Some editors call the material filler.

Among the causes of the vanishing trial are cited the following: the enormous costs of trial, for both plaintiff and defendant; risk-averse clients; and, an increase in the number of pre-trial methods used to dispose of cases short of trial, including such things as alternative dispute resolution, mediation and arbitration. All are valid points. But I suspect there is another reason cases aren't getting to trial, and it has to do with the socialization of lawyers.

The great unstated assumption of a three-year legal education is that the world is composed of a community of reasonable minds. We are taught to bargain in the law's shadow as though there were but one source of light illuminating the world, the sweet light of reason. Most often, however, clients bargain in the darkness created by their own shadows; those shadows are internally generated and are often the product of expectations and visions that are not shared, but arise from the ragged edges on which most folk live.

Enormous pressure is put on lawyers on both the criminal and civil side to settle cases. The unstated belief is that reasonable lawyers can always come to terms. It is the clients whose discordant voices and needs muck up a perfectly good and, in theory, perfectably transparent process.

I wonder about this pressure and whether it creates a bias against trial as a means of resolving disputes. Is the need for trial viewed as a failure of reason, and, as such, are obstacles place in the way of trial in order to avoid rewarding the irrational? It certainly seems that way.

We boast that the jury trial is a jewel in the nation's crown, but then we seek to avoid it all costs. Is that because at heart we still harbor Platonic illusions, to wit: there exists a world of transcendent norms discernable by reason? Reality counsels otherwise.

Requesting a jury trial may not be a sign of dysfunction. It may be the best means of resolving conflict that we can fathom. Let ordinary people decide conflicts. Isn't that the theory? Or is the new unstated theory that we elites of chaos, lawyers schooled in despair and judges sitting as top officers of the courts, know best? In another piece I will explore the role that laws against jury nullification may play in this process.


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© Norm Pattis is represented by Elite Lawyer Management, managing agents for Exceptional American Lawyers
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