The Case for Trials: Considering the IntangiblesPaul Butler*

In the United States, trials perform important functions that are difficult toquantify. Trials, for example, educate Americans about each other, and thelaw. They are a vivid, practical example of the faith in democracy that liesat the core of the American experiment. It is worrisome that trials aredeclining as trial arbiters—jurors and judges—become more diverse. Therejection of trials may also evidence a new and troubling cultural prefer-ence for compromise over standing on principles. The article recommendsthat trials be encouraged, including by reducing the costs of losing and byevaluating proposed laws and policies for the effect that they would haveon trials.

I. INTRODUCTION: THE TRIAL JUDGE WHO HATED TRIALS

I was a law clerk for a trial judge who hated trials. I describe her as a trial judge forthe irony, and because conducting trials was part of her job description. In reality,however, a “coerced settlement” or “enter-my-courtroom-and-I’ll-make-you-pay” or“anti-trial” judge would be a more accurate moniker.1 This jurist was happiest in herbusiness suit, at her desk in chambers, in conference with trial attorneys, cajolingand imploring and yelling. She was never thrilled to find herself draped in a robe,in a courtroom, sitting on high.

The judge’s distaste for trials was a bit about efficiency, but not much. She wasa liberal Democrat who was happy to expend the government’s resources if she

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©2004 American Bar Association. All rights reserved.

*Professor of Law, The George Washington University Law School, 2000 H Street, NW, Washington, DC20052; e-mail pbutler@law.gwu.edu.

1See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv.L. Rev. 924, 925–26, 995–1003 (2000) (discussing trial judges who espouse the viewpoint that settlements arepreferable to trials).

Journal of Empirical Legal StudiesVolume 1, Issue 3, 627–636, November 2004

thought it might do some good. The judge’s problem with trials was more spiritual:she didn’t believe in them.2 Trials created “win/lose” scenarios, whereas the judgethought that “win/win” or “not win so much/not lose so much” were possible andbetter alternatives. With trials, outcomes are contingent on unpredictable jurors andwooden rules of evidence. And yes, trials cost money and, especially, time. In thejudge’s view, their costs far outweighed their benefits.

The forefathers believed in trials, very much. I described them as forefathersfor the irony. They were white men, and they could not have imagined that the third article of the Constitution they wrote would empower my judge, an African-American woman.3 Of course, the principles they espoused ultimately made myjudge’s elevation possible (even if the framers did not consistently practice those prin-ciples).4 Those same principles, especially the concern for democratic decisionmaking, would cause them to regret the contemporary phenomenon of vanishingtrials.5

I agree with the forefathers more than the judge. Trials are good, not bad. Ifear, however, that this proposition cannot be proven using economic analysis. Trialsare not efficient. Only when their intangible benefits are weighed can we properlymourn their demise.

This article proceeds in two sections. The first section will consider the intan-gibles that are lost as the institution of the trial vanishes. I will confess concern aboutthe reader’s reception of Section II. For a conference attended by lawyers and judges,the focus on intangibles may seem overly academic, too theoretical, perhaps evenlike “pie in the sky.” In a way, though, that’s the point. It is difficult to express regretabout vanishing trials without sounding mushy. Mushy is okay. (The Bill of Rights isincredibly mushy.) Section III of the article pays homage to the real world with prac-tical suggestions of how trials might be encouraged, and other ways that the valuesthey express can be maintained.

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2See Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494 (1986) (discussing the declining faith in trials and increase in settlements and use of alternative forums for adjudication).

3U.S. Const. art. III, §2.

4See, e.g., Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 148 (1990).

5See Jeffrey Abramson, We the Jury: The Jury System and the Ideal of Democracy 22, 29 (2000).

II. THE INTANGIBLE BENEFITS OF TRIAL

A. The Cultural Significance of Trials6

Trials are more than a forum for the objective adjudication of contested facts; theyhave cultural as well as legal significance. They are rituals—one of the few, in oursecular, heterogeneous society, that are open to all. When a person puts on a blackrobe and sits on high, he or she raises expectations. Sometime we look to trials forexplanations of evil (serial snipers, accidents, catastrophes). Sometimes we look totrials for justifications of vengeance. Often we look to trials for entertainment.7

None of this is new. One historical example is extreme, but revealing. Animalswho were accused of killing or hurting human beings used to be put on trial.8 Thereare records of more than 200 such cases, which occurred until the early 20thcentury—mainly in Europe but also in the United States and Canada.9 Many involvedwild pigs thought to have killed children, but defendants also included horses, dogs,and cows.10

The accused animals were treated like human defendants. They were officiallysummoned to answer the charges and, pending trial, placed in human jails. Defensecounsel was appointed. At trial, prosecutors presented evidence against the animals.

In France, groups of insects were prosecuted for spreading disease and destroy-ing crops. The actual punishments were either meaningless or unenforceable—forexample, the pests would be ordered to stop eating the crops.11 But the peoplewanted justice. There is something about the form of a trial—the story telling andthe solemn pronouncement of judgment—that is cathartic.

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6I expressed some of the ideas in this part in a recent essay in the Washington Post. See Paul Butler, We Want the Trial as Much as the Verdict, Wash. Post, Oct. 19, 2003, at B1 (discussing the trials of the accusedWashington, DC area snipers).

7We might expect entertainment at criminal trials, but even some civil cases (especially those involving celebri-ties) seem to captivate the public. The recent breach of contract trial involving Rosie O’Donnell receivedextensive media coverage. See, e.g., James T. Madore, Bloom Not Off Rosie/Experts Predict the Star WillBounce Back, Newsday, Nov. 14, 2004, at A54.

8The seminal text on these trials is E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals(E.P. Dutton, (1906) 1998). More recently, Professor Paul Schiff Berman has written thoughtfully about thesecases. See Paul Schiff Berman, An Observation and a Strange But True “Tale”: What Might the HistoricalTrials of Animals Tell Us about the Transformative Potential of Law in American Culture?, 52 Hastings L.J.123 (2000).

9Berman, supra note 8, at 147.

10Id.

11Id. at 156.

In the cases of the accused Washington, DC area snipers, the relative of onesniper victim said he wanted to attend the trial to find out as much as he could abouthis brother’s last moments.12 Another relative said she just wanted to see the defen-dant “as a live person.”13 When Theodore Kaczynski, the so-called Unabomber,entered a guilty plea, some relatives of his victims were disappointed.

Trials educate us, about each other and about the law. The O.J. Simpson trial,for example, illuminated a vast gulf between African Americans and whites about thefairness of the criminal justice system, and about Mr. Simpson’s guilt.14 Legal com-mentators for the media seldom comment about the law in a vacuum; the context ismost often a trial or other court proceeding.15 It is an opportunity to help peopleunderstand the law. Lawsuits against the tobacco industry and gunmakers and,recently, the fast-food industry, inspire more public debate about tort law than hoursof “issues” advertisement or scholarly articles.

My description of some cultural expectations Americans have of trials is notintended to suggest that these expectations are realistic. My goal is simply to acknowl-edge that when trials disappear, there is a cultural impact as well as a legal one.Perhaps when (if) we bemoan the loss of trials, our concern is as much cultural aslegal.

B. Trials and Democracy

By and large, when cases do not go to trial, they settle. In the civil context, the resultis that a private contract, not public law, resolves the dispute. In criminal cases, thetrial arbiter is the juror—the archetype of the democratic decisionmaker (althoughcriminal trials may be heard by judges, they are more frequently resolved by juries).Thus, in civil cases resolved by settlement and plea-bargained criminal cases, thepublic has less of a say in legal outcomes than it has in trials.

The concept of citizen-jurors resolving civil and criminal trials was viewed bythe framers as an important part of American democracy. The American civil jurywas imported from England where “the jury was the most representative institution

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12Michael E. Ruane, A Personal Stake in Bearing Witness: Sniper Victim’s Relatives Arrive to Watch and Testify,Wash. Post, Oct. 17, 2003, at A10.

13Id.

14See Jeffrey Rosen, The Bloods and the Crits, The New Republic, Dec. 9, 1996, at 27 (arguing that the O.J.Simpson trial “proved” some principles of critical race theory).

15Another frequent news “hook” is an oral argument before an appellate court, especially the U.S. SupremeCourt. It would be interesting to subject oral arguments to the same analysis to which this article subjectstrials, that is, compare their efficiency to their intangible benefits. It is a commonplace that oral argumentsoften are not particularly helpful to appellate judges.

available to the English people.”16 Professor Stephan Landsman has described it as“an expression of America’s faith in its citizens.”17 Thinking of both civil and crimi-nal juries, Professor Jeffrey Abramson writes that “no other institution of governmentrivals the jury in placing power so directly in the hands of citizens. Hence, no otherinstitution risks as much on democracy or wagers more on the truth of democracy’score claim that the people make their own best governors.”18

There is nothing inherently wrong with disputes being resolved by interestedparties rather than by neutral peers. We should recognize, however, that with fewertrials, there is less democracy. What is lost is the trial’s expression of faith in the American people. The rejection of the trial can be read as a critique of “democracy’score claim that people make their own best governors.”19

It is important not to overstate this claim. Even with vanishing trials, there prob-ably remains “enough” democracy. In the framer’s view, the importance of jurorswould pale in comparison to the importance of elected representatives.20 Moreover,the democracy correlate is to jury trials, and our concern at this symposium extendsto bench trials as well (indeed, the transfer of dispute resolution from unelectedjudges to citizen-litigants might be, in a sense, an expression of democratic princi-ples). The rejection of trials tears at the fabric of democracy, but it hardly destroysit. My mild point is that when one thinks of incursions on the principle of self-government, in addition to loosely regulated campaign financing,21 felony disen-franchisement,22 and abysmal poll attendance,23 think also of vanishing trials.

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16Stephan Landsman, Appellate Courts and Civil Juries, 70 U. Cin. L. Rev. 873, 875 (2000).

17Id. Likewise, Professor Landsman quotes Akil Amar: “If we seek a paradigmatic image underlying the Billof Rights, we cannot go far wrong in picking the jury . . . the jury summed up—indeed embodied—the idealsof populism, federalism, and civic virtue that were the essence of the original Bill of Rights.” Id. (quotingAkil Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1190 (1991)).

18Abramson, supra note 5, at 2.

19Id.

20The framers certainly included explicitly anti-democratic mechanisms in the Constitution, including theelectoral college and the apportionment of two senators to each state regardless of its population. See U.S.Const. art. II, § 2; see also 3 U.S.C. §§ 1, 3, 8 (prescribing the operation of the electoral college).

21See the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107–155 (codified in scattered sections of 2,36, & 47 U.S.C.); McConnell v. FEC, 124 S. Ct. 619 (2003).

22See, e.g., Fla. Const. art. IV, § 4; see also Pamela S. Karlan, Convictions and Doubts: Retribution, Repre-sentation, and the Debate Over Felon Disenfranchisement, 26 Stan. L. Rev. 1147 (2004); Thomas J. Miles,Felon Disenfranchisement and Voter Turnout, 33 J. Legal Stud. 85 (2004).

23See National Election Studies, Center for Political Studies, University of Michigan, The NES Guide to PublicOpinion and Electoral Behavior (1995–2000), available at <http://www.umich.edu/~nes/nesguide/nesguide.htm>.

C. Trials and Diversity

In the United States, any organization that is truly democratic, as I have argued (jury)trials are, must necessarily be diverse. In fact, “over the last hundred years, the civiljury has grown into perhaps the most diverse and representative governmental bodyin America.”24 A sensitive member of a minority group might worry about a correla-tion between increasing diversity and vanishing trials. The rejection of trials feels likea devaluation in a public good after it is integrated; the phenomenon of decliningtrials could seem like the “white flight” from the public school districts in whichBrown v. Board of Education was ordered enforced.25

The data considered for this Symposium do not mention race. We have manystatistics regarding four types of civil trials: torts, contracts, civil rights, and prisonerrights. It does not seem unreasonable to posit that minorities (especially AfricanAmericans and Latinos) are more likely to be plaintiffs in the latter two categoriesthan in the former two (or the labor and intellectual property cases for which thereis less extensive data). Guess what? Civil rights and prisoner cases are the areas inwhich the absolute number of trials have increased since 1962.26

There are important caveats and nonracial explanations, including the aston-ishing growth of the prison population.27 Still, considering the institutional and legaldisincentives against trials in civil rights and prisoner cases (e.g., mandatory initialscrutiny by the Equal Employment Opportunity Commission28 and the Prison Liti-gation Reform Act of 199529), the growth is interesting.

We do not know enough to assert that minorities favor trials (if not absolutelythen at least more than whites do). Racial data would be helpful. The rejection oftrials by minorities—even as trial decisionmakers (judges and juries) become morediverse—would be an especial indictment of the institution of the trial. On the otherhand, the embrace of trials by people of color, concomitant with the rejection of

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24Landsman, supra note 16, at 881.

25See Brown v. Board of Educ., 349 U.S. 294 (1955) [Brown II]; see Swann v. Charlotte-Mecklenburg Bd. ofEd., 402 U.S. 1 (1971); see also Richard Thompson Ford, Brown’s Ghost, 117 Harv. L. Rev. 1305, 1306 (2004)(discussing “white flight” to suburban school districts as a response to enforcement of Brown).

26Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and StateCourts, 1 J. Empirical Legal Stud. 459 (2004).

27See, e.g., Marc Mauer, Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2003).

28See 29 C.F.R. § 1614.105 (2004).

29Pub. L. No. 104–134, 110 Stat. 1321 (1996) (codified as amended at 18 U.S.C. § 3626, 28 U.S.C. §§ 1346,1915, 42 U.S.C. § 1997, and other sections) (imposing procedural restrictions on prison reform litigation inthe federal courts).

trials by whites, would also be revealing, even if it only confirmed a racial divide thatone would hope had been significantly eroded since the 1960s.

If the rejection of trials is premised, in part, on a distrust of diversity, somepeople might suggest that minorities bear some of the responsibility. The perceptionis that some jurors use trials to engage in political performances, as opposed to adju-dication of facts. Thus, the argument goes, African-American jurors nullify becausethey think there are too many African-American people in prison.30 Working-classjurors, it is feared, set aside the law and instead use their power to redistribute wealthbetween working-class plaintiffs and reach corporate defendants.31 The concern, jus-tified or not, is that diverse jurors take the spirit of democracy too far: they “do” raceand class in a way that (1) abrogates constitutional principles of separations of powersand (2) makes jury verdicts even more difficult to predict. Under this view, it seemslogical for a corporate defendant, say General Motors or McDonald’s, to resist goingto trial in, say, the Bronx, New York.32

The perception that minority jurors are more political assumes, at least, theirability. The more sinister view is that as juries have become more diverse, they havebecome less capable (while, at the same time, litigation has become more complex).This is a variant of the argument, familiar in the context of affirmative action, thatdiversity lowers standards.33

There is an important distinction between perception and reality. For our pur-poses, however, that distinction is not especially significant. If litigants perceive that

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30For a description of the debate about the frequency of race-based jury nullification, see Abramson, supranote 5, at xv–xviii; see also Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal JusticeSystem, 105 Yale L.J. 677 (1995).

31There is considerably less evidence to support this perception than of race-based nullification. Indeed, themore persuasive analysis studies suggest that this is not the case. See Alan Howard Schiener, Judicial Assess-ment of Punitive Damages, The Seventh Amendment, and the Politics of Jury Power, 91 Colum. L. Rev. 142,153, 158 (1991); see also Neil Vidmar, The Performance of the American Jury: An Empirical Perspective, 40Ariz. L. Rev. 849, 869–71 (1998) (discussing the possibility that juries hold corporations to higher standardsthan individuals).

For articles addressing the issue of civil case outcomes based on locale and demographics, see TheodoreEisenberg & Martin T. Wells, Trial Outcomes and Demographics: Is There a Bronx Effect?, 80 Tex. L. Rev.1839 (2002); Eric Helland & Alexander Tabarrok, Race, Poverty, and American Tort Awards: Evidence fromThree Data Sets, 32 J. Legal Stud. 27 (2003); Mary R. Rose & Neil Vidmar, The Bronx “Bronx Jury”: A Profileof Civil Jury Awards in New York Counties, 80 Tex. L. Rev. 1889 (2002).

32Most categories of cases have declined in every jurisdiction. As the Galanter analysis suggests, the explana-tion is likely to be multifaceted. Galanter, supra note 26. My hypotheses in this section is that fear of diver-sity is one explanation of why some kinds of trials have declined in some jurisdictions with more nonwhitejurors (and judges). The diversity hypothesis does not explain the decline in jurisdictions in which jurorsand judges remain overwhelmingly white.

33Grutter v. Bollinger, 123 S. Ct. 2325, 2358 (2003) (Thomas, J. & Scalia, J., dissenting).

trial in jurisdictions with more diverse populations are riskier than trials in otherjurisdictions, they will avoid trials in those jurisdictions (i.e., most large Americancities) even if this perception is not supported by the facts.

D. Other Intangibles

There are other benefits of trials that are not easily quantified. They are one of thefew official forums for story telling. With fewer trials, we lose some public stories, andtheir official morals (i.e., verdicts). When high-profile civil and criminal cases settle,this loss feels particularly acute. The public does not have access to the facts; it is lesscertain of what happened, or it must collect the facts from several venues, as opposedto one. The reduction in official stories makes us less certain about the law,34 but alsoabout public mores. Everyone knows, for example, that McDonald’s and Burger Kingand KFC are factual causes of obesity. A trial would help inform our judgment aboutwhether they should be held morally responsible as well.

Vanishing trials evidence an encroaching moral relativism in American society.Compromise is valued over judgment. Right and wrong have less content: the socialobjective is the gray center. Surely some things are not negotiable, but that is not thestory the numbers tell. Going to trial is the ultimate statement of principle, but thereare risks to standing firm on what you believe. When those risks reach a certain level,most litigants are willing to make concessions. Here, again, we must not state theconcern in overly dramatic tones. No one is forced to settle a case (although myjudge came perilously close, some lawyers would say). It is sufficient to acknowledge,in the relentless bargaining about nearly everything, the potential of a dangerousslippery slope.

To the visitor from Mars, trials would almost certainly seem silly—the hocuspocus of the oath, the black robe, the delegation of important responsibility to 12people who mainly have demonstrated the competence to get a driver’s license or register to vote. Indeed, I have read that upon hearing an explanation of theAmerican jury system, a group of Japanese judges burst into incredulous laughter.The story made me proud to be an American, not because I believed our system wasbetter than the Japanese system (about which I was ignorant) but because I thoughtthe American system worked well enough, and it is as unique as the United Statesitself.

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34See Galanter, supra note 26, at 530.

In a realm of ever-proliferating legal doctrine, the opportunities for arguments and decisions about laware multiplied, while arguments and decisions become more detached from the texture of facts—at leastfrom facts that have weathered the testing of trial. The general effects of judicial activity are derived lessfrom a fabric of examples of contested facts and more from an admixture of doctrinal exegesis, discre-tionary rulings of trial judges, and the strategic calculations of the parties . . . Paradoxically, as legal doctrine becomes more voluminous and more elaborate, it becomes less determinative of the outcomesproduced by legal institutions.

American litigants, however, seem mainly to share the reaction of those Japan-ese judges. Having a justice system more like other countries is not necessarily a badthing (indeed, if we were to follow the example of many other countries in criminaljustice we would be a fairer society).35 The final intangible that I will note, however,is that as we abandon trials, we abandon an aspect of our national character.

III. RECOMMENDATIONS

A. Establishing Goals

Trials should be encouraged. Among judges and lawyers, the institution of the trialhas a poor reputation (other than as a skills-building opportunity for young lawyers).The result is that trials are discouraged, including in cases in which parties mightordinarily be reluctant to use alternative methods of resolving disputes.

To encourage trials, jurisdictions might set goals regarding the number of trials(or hours spent in trial) expected of judges. This practice is as principled as theimplicit goal that many judges now set of fewer, or no, trials as the ideal. Judgesshould receive administrative support for taking cases to trial, as opposed to beingseen as poor case managers if they are regularly in trial.

B. Reduce the Cost of Losing

One important way that trials are discouraged now is when the costs of losing at trialare significantly higher than accepting a partial loss in a settlement. The most obviousexample is the provision in the federal sentencing guidelines that entitles peoplewho “accept responsibility” by pleading guilty to less punishment.36 To the extent thatlawmakers, judges, and lawyers (especially prosecutors) can shape the process,persons who exercise their constitutional right to trial should be penalized no morethan the person who exercises any other constitutional right.

C. Trial-Impact Analysis

Legislative and judicial initiatives should be assessed for their impact on reducingtrials. The fact that a particular policy would reduce the number of trials should beviewed negatively (although it should not be dispositive). Now, trial-impact analysis

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35Eric Schlosser, The Prison Industrial Complex, Atlantic Monthly, Dec. 1998, at 51 (comparing U.S. sen-tences with those imposed for similar crimes in European nations, and finding prison sentences for manycrimes to be higher in the United States); see also James Lynch, Crime in International Perspective, in Crime11 (James Q. Wilson & Joan Petersilia eds., 1995).

36U.S. Sentencing Guidelines Manual § 1A1.1(4)(g) (2003).

is sometimes conducted informally, but with the objective of reducing trials, notincreasing them.37

D. Acknowledge the Intangibles

We should discuss more explicitly what we expect of our justice system. Its “missionstatement” for many Americans would include more than simple resolution of dis-putes. Justice is sometimes different from outcomes predicated on risk-averse com-promises. When we consider the intangibles, we understand the interplay betweentrials and culture, and values such as democracy and diversity. It may be that theseextra-legal expectations of trials are misplaced. In acknowledging the intangibles,however, we have the potential to create more responsive law and policy.38

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37When, for example, U.S. Attorney General John Ashcroft suggested that he would only allow federal pros-ecutors to accept plea agreements for severe sentences, some lawyers criticized this policy on the ground thatit would increase the number of trials. See Adam Liptak & Eric Lichtblau, New Plea Bargain Limits CouldSwamp Courts, Experts Say, N.Y. Times, Sept. 24, 2003, at A23.

38Perhaps, for example, in the criminal context, “restorative” justice concepts gain more currency if theyaddress some of the same intangibles as trials. See, e.g., Eric Luna, Punishment Theory, Holism, and the Pro-cedural Conception of Restorative Justice, 2003 Utah L. Rev. 205 (discussing the potential for greater trans-parency use of oversight mechanisms in restorative programs).

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