Most civil cases don’t go to trial.
And that’s “most” as in something like 95 to 98 percent.
It follows that most litigators don’t try cases. We’ve seen reports in the legal press for several years that lawyers who never tried a case are now being made litigation partners in large firms. And we suspect that understates the issue. We suspect that there are now litigators approaching retirement — people who have spent an entire career in “trial practice” — who have never tried a case. (If you’re one of those people, please let us know. It would be good for the world to confirm our speculation, and it doesn’t matter to you any more — you’re retired, for heaven’s sake.)
Allow us to use ourselves as illustrations. (After blogging for nearly a year, we’ve grown accustomed to abject, public self-humiliation.) Bexis tried a bunch of asbestos cases in his youth, but the number of cases that he actually tries has dropped off in recent years. Herrmann, in contrast, has tried cases at a relatively constant rate, but that rate may surprise people. He’s tried three cases since January 1, 2000: a damages-only retrial in a case over the value of a piece of African art; the Dow Corning tax litigation, over the appropriate tax treatment of costs incurred defending breast implant claims; and a product liability wrongful death case.
It’s a shame you can’t see each other’s reactions to that disclosure. Half of the visitors to this blog — the lay press, some less sophisticated visitors — are muttering, “Shoot! Three cases in seven years? He calls himself a lawyer? The neighbor kid down the block probably tried more cases than that. Perry Mason used to try three cases a day, if I remember right.”
But our visitors from Debevoise and Sullivan & Cromwell are muttering, “Shoot! Three cases in seven years? I better not run up against that guy. He’ll kick the stuffing out of me; I haven’t tried a case in more than a decade.”
The few civil cases that go to trial tend to be those that are not financed by the parties. That basically means personal injury cases, where a contingent fee lawyer fronts costs for the plaintiff, and a liability insurer pays for the defense. Essentially no one goes to trial on his own money any more.
That does mean, however, that product liability lawsuits are somewhat more likely to go to trial than other cases. And perhaps that’s why product liability lawyers like to boast about their massive trial experience, and clients routinely grill outside counsel at beauty contests about the number of cases they’ve tried to verdict.
But, in other fields of law — securities, antitrust, commercial disputes — trials just ain’t gonna happen. And, although we haven’t seen the numbers, we suspect that there are fewer and fewer trials even in trial-heavy specialities, such as product liability.
And — at long last, we get to the point! — we think this matters.
It matters because counsel should change their strategies when they’re defending cases that they know will settle.
Here’s one example: Suppose an opposing expert made an arithmetic error that undercuts the entire basis for his expert opinion. If I’m going to try that case, I should use the deposition of the expert to lock him into his opinion and leave him no way to escape from the error, but I should not disclose the error.
I want to disclose the error for the first time at trial, so the expert will be caught by surprise, and the jury will see that the guy is an incompetent boob.
On the other hand, if the lawsuit is going to settle, there’s no reason to keep my powder dry. There will never be a trial. If I don’t spring the trap during the deposition, then the trap will never be sprung at all, and my client will never receive any value (a lower-cost settlement) as a result of my having unearthed the mistake.
That’s just one illustration, of course. But it does make us wonder about law firms that boast, for example, that, “We prepare every case as though it’s going to trial!” Wouldn’t it be more intelligent to prepare for trial those cases that are likely to go to trial, and to posture for settlement those cases that are going to be settled?
Please note that the words we’re writing here are viewed, within our profession, as heresy. Big, bad trial lawyers don’t acknowledge that most cases settle. Instead, those lawyers beat their chests and shout that, “I eat nails for lunch! I gnaw limbs off plaintiffs’ lawyers! I spit out experts’ eyeballs!”
That’s all well and good, and it provides plenty of entertainment.
But, deep in our hearts, we think that a more nuanced and intelligent approach to defending lawsuits, marketing law firms, and retaining counsel might serve everyone well.
Most civil cases don’t go to trial.