Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases

Abstract

If trials have been “vanishing” from the federal courts in the past few decades, it matters, from a normative perspective, whether this trend reflects an increase in private settlements (as many assume) or an increase in public nontrial adjudication. In this article I investigate the coding of “disposition” by the Administrative Office of the U.S. Courts as the first step in an effort to assess changes in the use of trial, nontrial adjudication (such as summary judgment and dismissal), and settlement to resolve federal civil cases. Based on audits of the 2000 data using electronic docket information available through PACER, I identify substantial “error” rates—as high as 70 percent—in the most ambiguous and relevant disposition codes, making simple interpretation of the raw codes highly unreliable. Using the sample frequencies of true dispositions determined from these audits, I correct the 2000 data. Comparing this corrected data to the raw 1970 data would lead to the surprising conclusions that a smaller percentage of cases were disposed of through settlement in 2000 than was the case in 1970, that vanishing trials have been replaced not by settlements but by nontrial adjudication, and that it is the bench, not jury, trial that has been transformed in this way. These conclusions are suggestive only, but they point to the importance of performing the more onerous task of auditing the pre‐PACER data produced by the federal courts in order to assess whether we are witnessing a fundamental shift out of public adjudication into private settlements or merely a shift in how and when judges decide cases.