Going to Trial: A Rare Throw of the Die

If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses that preference in everything from the rules of procedure and evidence, to appellate opinions, to legal scholarship, to the daily work of our trial judges. Our culture portrays trial-especially trial by jury-as the quintessential dramatic instrument of justice. Our judicial system operates on a different premise: Trial is a disease, not generally fatal, but serious enough to be avoided at any reasonable cost