Abstract
The vanishing trial is part of our legal landscape. Lawyers, who are clear-eyed people little given to romantic sentimentality, will inevitably accommodate their lawyering styles to this phenomenon, even if they are unhappy with this course of events. It has often been remarked ruefully that “trial lawyers” have almost all become “litigators.” I have been teaching trial skills to practicing lawyers through the National Institute for Trial Advocacy (NITA) for thirty years, and those same skills to law students for about the same time. I am definitely ambivalent about a change in the way in which our continuing legal education (CLE) organizations and law schools imagine the legal process when that change hastens the death of the trial. After all, one of the identified causes for the death of the trial—an institution which is, in my view, a significant cultural achievement—is the sharp decline in trial skills among bar members and the resulting aversion to bringing cases to trial. If lawyers increasingly view trials as deviant events, their approach to litigating cases will itself become one of the causes of the trial’s disappearance. The “new normal” will become a self-fulfilling prophecy, operating through our collective professional psychology and, derivatively, through the economics of actually getting a case to trial. What is the “vanishing trial” phenomenon? I have summarized it in the following terms:
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