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Much Celebrated American Trial is Dying in Real Life

The trial is dying, according to a new book by a School of Law professor.

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March 31, 2009 | by Pat Vaughan Tremmel

Listen to Robert Burns, professor of law, discuss his new book "The Death of the American Trial"

CHICAGO --- The American trial continues to thrive in the nation's imagination through a long succession of films, newspaper accounts and best-selling novels. But in real life, the trial is dying, according to a new book by a Northwestern University School of Law professor.

The decline of such a uniquely American engine of democracy would shock the founding fathers, according to the book's author, Professor Robert Burns.

"The Death of the American Trial" basically is a plea from Burns to resuscitate "an essential part of our Constitution that is embedded in the Fifth, Sixth and Seventh Amendments."

Today, the pre-trial proceedings -- taking place behind closed doors -- are at the statistical heart of judicial contests. While necessary to the functioning of our legal system, pre-trial proceedings cannot do the job of the trial, the book argues.

A forum like no other, the trial allows ordinary Americans to get to the core of a dispute -- rather than distorting the issues and burying them in a legalistic avalanche of details, according to Burns.

The number of cases that go to trial has declined at an alarming rate over the last couple of decades, according to the book.

Overall, for all areas of the law, federal civil trials have declined 60 percent since the mid-1980s. In 2002, less than 2 percent of those cases ended in a trial – down from 12 percent in 1962 and 20 percent in the 1920s. Less than 5 percent of criminal cases go to trial; most result in plea bargains.

The trend away from the trial promotes governance by bureaucracies and the automatic functioning of our economic system without enough human intervention, according to the book.

"Corporate and government decisions are often made behind closed doors," Burns says. "Without the ability of ordinary citizens to carefully evaluate those decisions, we diminish our ability to have democratic governance."

Burns refers to a quote by a federal judge who eloquently brought home the point with a canary-in-the-mineshaft metaphor. (When the canary died, miners knew that toxic gases were present.) "If our people lose their inherited right to do justice in court, other democratic institutions will lose breath too," the judge said.

The reasons that the trial is dying are complicated and differ depending on the context. Lawyers' fees, judges' procedural rules and other technical steps that must be followed on the way to court make trials more expensive. Long delays in getting to trial make settlements more appealing to plaintiffs. Fewer lawyers have the experience and skills to go to trial. Because of legal developments, judges more regularly dismiss cases in motions and in summary judgments -- based solely on papers and affidavits.

Cases decided without a trial are much more formal, and not in a good sense, according to Burns. They are based primarily on documents rather than face-to-face encounters between the parties.

"The cases that never get to court have no opening statements, no presentation of witnesses, no cross-examinations -- none of the trial's devices that allow for a careful examination of the real situation involved in the case," he says. "The judge gets to pretty much decide everything on his own without the discipline of trial evidence."

The trial, he said, is perhaps the only American forum where attention to the specifics of factual situations is so highly respected. "The disciplined attention that is focused on the facts of a situation in an American courtroom occurs almost nowhere else in the world," Burns argues.

Most important, the trial allows the other side to be heard -- "more than congressional hearings do, more than writing about public affairs does," Burns says. "Each side has an unparalleled opportunity to present its story and to challenge the other side's story in a full airing of the facts."

He disagrees with critics who say the issues that come before courts today are too complex for ordinary citizens to comprehend. The devices of trial -- direct examination, cross-examination, presentation of testimony, face-to-face encounters -- are not suitable to properly present difficult issues, according to the critics.

Burns insists that good lawyers know how to simplify the issues -- in an inspired way that improves deliberations -- so that ordinary citizens can make important decisions that affect the country.

He argues that many more cases could go to court and be tried in a reasonable amount of time if judges and lawyers worked to change the culture to favor the trial. "Judges, for example, could limit discovery so that cases don't go on forever at the pre-trial process," he says. "In other words, the pre-trial tail of the dog would no longer wag the dog."

Burns quoted the great political thinker Alexis de Tocqueville, who talked about how the trial instilled a "respect for the matter judged, and the sense of right."

"The trial is a great cultural achievement that scrapes off the rust of private selfishness so that citizens can bring to bear their best judgment on matters of public concern," Burns concludes. "That is especially important in an individualist society like ours."

(Andrea Albers, newsroom assistant, media relations, contributed to this article.)