The Trials and Tribulations of Counting Trials

This paper was prepared for the 2012 Clifford Symposium honoring Marc Galanter which was held at DePaul Law School. One aspect of Galanter’s recent work is on the phenomenon he labeled the “vanishing trial.” In this paper I examine the problems that arise when one seeks to count the number of trials. I show that the definition of a trial, other than a jury trial, is highly ambiguous. There are many trial-like events taking place in venues we do not label “courts.” Even in the court setting, and even for jury trials, there are vast differences in when a trial is counted. I show that there are at least several million trial-like events taking place in the United States annually, although the number of jury trials is small and has been declining in recent years. I conclude with a discussion of why we might care about how many trials occur and why the decline in the number of trials might reflect at least in part positive developments such as the professionalization of policing and the provision of legal counsel to criminal defendants in criminal cases and more economically rational behavior by litigants in civil cases