BY STEVE KNOPPER
And will it make a comeback?
In 2005, Kathryn Miller was in the middle of an employment discrimination deposition
on the plaintiff side, and she and opposing counsel were shouting objections—”going at
it, which is what you do,” she says—when her client burst into tears.
During a break, Miller huddled with her. “What’s wrong?” she asked. “Things are going really well.”
“This is not about me or my issues anymore, is it?” the client responded. “This is about you
and the other lawyer and all the issues you’re fighting about that I don’t even understand.”
That case never went to trial. Shortly thereafter, Miller decided to focus exclusively on what
had been her side practice: alternative dispute resolution.
“I decided she was exactly right,” says Miller, the founder of Littleton Alternative Dispute
Resolution Inc. “You lose sight of the reasons people come to you to get their cases resolved
in the battle of litigation.” With ADR, she adds, “I focus way more on the needs of the clients
and how they feel and what caused them to get into this dispute. In the litigation system, it’s
largely the opposite of that.”
Miller is part of a trend in the law—away from the courtroom, away from trial—but many
within the legal community aren’t so sanguine about it.
The modern conception of “a jury of your peers” began in 12th-century England and lasted
more than 600 years, until King George III eliminated trials in the 18th century. When the U.S.
freed itself from British rule, the Founding Fathers built jury trials into the Bill of Rights as the
Seventh Amendment in 1791. Acutely aware of this history, many judges and attorneys have
been dismayed by the recent trend. “The Vanishing Trial,” a landmark 2004 study reported by
the American Bar Association, noted that federal courts nationwide tried more cases in 1962
than in 2002, even though in the latter year there were twice as many criminal filings and
five times as many civil filings. Overall, the percentage of federal civil cases that went to trial
dropped from 11. 5 percent in 1962 to 1.8 percent in 2002.
“I do not see [the trend] reversing anytime soon, unfortunately,” says Christina Habas, a
former district court judge, and now a personal injury-plaintiff attorney for Keating Wagner
Polidori Free in Denver. “If I have a dispute, I want a jury to decide it.”
“Trials do not represent a failure of the system,” reads a 2009 report by the University of
Denver’s Institute for the Advancement of the American Legal System (IAALS). “They are the
cornerstone of the civil justice system.”
So why is this cornerstone eroding?