Rebecca Tushnet’s 43(B) Blog has this brief post about this opinion (.pdf file) approving the class settlement in the In re Relafen Antitrust Litigation case (D. Mass. Sept. 28, 2005).  As Rebecca rightly points out, what is interesting is not the opinion itself but the appendix (scroll down to page 88) which decries "the rise of settlements and the corresponding demise of the jury trial."  Judge Young lists several reasons for the decrease in the number of jury trials and mentions, in passing, judges’ desire to control their dockets.  I think that one reason (among several) for the decrease in jury trials is that judges want to close open cases.  As a result, they push the parties to settlement.  (In one recent case of mine, the judge stated the case had been going on too long, referenced the fact that she would have to list the case on some report to Congress, and then asked the parties about their settlement efforts and made some suggestions about moving the settlement process along).  A second reason not mentioned by Judge Young is that the cost to a party to try a case (i.e., legal fees and costs) is higher then ever.  (At least, I believe that to be the case.  Has anyone seen or done any research on this issue?).

[Update:  Another possible reason for a decrease in trials is that the (perceived) cost of losing to the attorney is higher than ever.  I think that some attorneys fear that if they lose a trial it will taint them.  And this goes for in-house counsel too (who may think that their career will stall, or they will lose their job, if the company loses a trial - especially a large complex trial such as an antitrust trial).  This is also cyclical.  The fewer trials, the more importance is placed on the trials.  I disagree that losing a trial taints a lawyer’s record.  First, trials are lost all the time.  Even the best of attorneys lose trials.  For example, renowned trial attorneys such as Dan Webb and Brendan Sullivan have lost trials but no one thinks they are less for it.  When I was a younger attorney (oh so many years ago) I used to like to say that I was undefeated when I orally argued discovery motions (which is no longer true).  But, as a friend of mine pointed out to me, that is a more a sign that I had not argued many such motions than a sign that I was an excellent oral advocate.  Second, there is a benefit to the attorney (and his/her client) in being known as an attorney who will, in fact try a case.]

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