Litigation Realities Redux

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study and reform of the adjudicatory system's operation. INTRODUCTION I. FORUM A. Forum Selection B. Forum Effect II. PRETRIAL A. Steps to Termination 1. Pleading 2. Disclosure 3. Discovery 4. Conference 5. Settlement 6. Motion B. Time to Termination III. SETTLEMENT A. Importance of Settlement B. Rate of Settlement IV. TRIAL A. Decline of Civil Trial B. Trial by Judge or Jury V. JUDGMENT A. Win Rates B. Foreigner Effect VI. APPEAL A. Affirmance Effect B. Anti-Plaintiff Effect CONCLUSION INTRODUCTION A half-dozen years ago, Ted Eisenberg and I started our article entitled Litigation Realities (1) with a quotation of Louis XVI: his journal entry for July 14, 1789, was "Nothing." (2) Our point was that the modern lawyer who ignores empirical research, even though law has long ignored empirical methods, risks giving in retrospect the very same impression as the French king gave. From that starting point, our article tried to explain empirical methods and map an empirical agenda. Well, a new age has since dawned. The recent years have seen tremendous advances in empirical studies. Much remains to do, of course. But, as the even earlier French proverb put it (although arguably with inaccuracy under some circumstances), "Something is better than nothing." (3) I propose in this Article to discuss anew what all of us are now learning about litigation, thanks to this increasing use of empirical methods. I shall again treat separately the six phases of a lawsuit: forum selection, pretrial practice, settlement process, trial practice, judgment entry, and appellate practice. For each, I shall describe what I see as important insights from recent empirical publications, while also providing new data on the realities of that phase. As I shall demonstrate, the last half-dozen years have altered our earlier article's understanding of some features of litigation, which was to be expected given that any initial steps into a new field of study must be tentative ones. Thus, the emphasis in this redoing of Litigation Realities, as compared to the original, will appropriately be less on yesterday's news of empirical methods (4) and more on recent empirical results. I. FORUM A. Forum Selection The name of the game is forum shopping, as many have observed elsewhere. (5) Lawyers all know this and have lived by it forever. The contribution of recent empirical research, besides confirming the existence of the phenomenon, has been to show that all of those lawyers were not wasting their clients' money on forum fights--because, in fact, forum matters. Forum is worth fighting over because outcome often turns on forum, as I shall explain in the next subpart. Forum selection accordingly remains extraordinarily important in the American civil litigation system. Today, after perhaps some initial skirmishing, most cases settle, while few cases reach trial. (6) Yet all cases entail forum selection. The plaintiff's opening moves include shopping for the most favorable forum, be it some state's courts or the federal system, and be it any particular venue within the jurisdiction. (7) Then, the defendant's parries and thrusts might challenge the plaintiffs choice of forum and also might include some forum shopping in return, possibly by removal from state to federal court (8) or by a motion for change of venue. (9) As a consequence, the parties frequently dispute forum. Federal litigators, for example, deal with many more change-of-venue motions than trials. …