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1 J. Empirical Legal Stud. v (2004)
The Vanishing Trial

handle is hein.journals/emplest1 and id is 469 raw text is: The Vanishing Trial
Patricia Lee Refo*
Is the trial an endangered species in our courts? Are the number of trials declining
and, if so, why? And should we care?
The American Bar Association Section of Litigation undertook a major project
to answer these questions under the leadership of the Section's Civil Justice Initia-
tive, chaired by Professors JoAnne Epps of Temple University, Steve Landsman of
DePaul University, and Bob Sayler of the University of Virginia. The Vanishing Trial
project is the largest single initiative the Section has ever funded. We set out to doc-
ument, and then to analyze, what many of us knew anecdotally from our own prac-
ices-that old-fashioned trials are an increasingly rare beast.
We turned to Marc Galanter of the University of Wisconsin Law School to
collect as much data as possible about what is happening with trials, especially in
the federal courts. That data collection formed the predicate for papers by some
of the most respected academics in the country on a variety of topics relating to
the vanishing trial, its causes and consequences. In December 2003, we brought
together the academics with state and federal judges and leading practitioners,
including then ABA President-Elect Robert Grey, for an extraordinary two-day sym-
posium to discuss the data, present the papers, and begin to consider the myriad of
issues they raise.
To understate, we touched a nerve. The Vanishing Trial project spawned a
blizzard of publicity in both the legal and mass media, and has been and will con-
tinue to be the subject of follow-on conferences hosted by bar groups across the
To be sure, trials have never been our principal method of dispute resolution.
It has long been true that most cases settle, or are otherwise resolved, well before
the judge takes the bench or the jury is seated in the box. Our examination of the
consequences of the vanishing trial must take care not to overstate the role of the
trial in the good old days. Still, the trends are clear enough that we must start asking
what the diminishing trial means for our justice system and our society. And what, if
anything, the organized bar should be doing about it. The thought-provoking papers
*Chair, Section of Litigation, 2003-2004. Ms. Refo is a partner at Snell & Wilmer, LLP in
Phoenix, Arizona. She is a member of the Advisory Committee for the Federal Rules of
Evidence, Chair of the ABA's American Jury Project, and a Fellow of the American Bar

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