Are civil trials vanishing?Judge Beth M. Andrus

American Judges Association

October 2015

King County Superior Court Statistical Analysis (1992 – 2014)

Civil trials = decreased in real numbers

Tort trials = alive and well Commercial trials = endangered

species

King County Superior Court 1992-2014

King County, Washington Population

1992 Washington State 5,091,100 King County 1,572,000

2014 Washington State 6,968,200 King County 2,017,250

(22% population increase in 22 years)

King County Superior Court Statistics

Total new civil case filings

1992 22,108 2014 21,418

Total civil case resolutions

1992 23,814

2014 22,551

King County Superior Court 11 Major Civil Case Types

Collection

Commercial

Medical Malpractice

Other Malpractice

Miscellaneous

Personal Injury

Property Damage

Quiet Title

Tort, Motor Vehicle

Tort, Other

Wrongful Death

King County Superior Court 11 Major Civil Case Types

Total Civil Case Filings 1992 12,465

2014 11,287

Total Case Resolutions 1992 13,851

2014 12,038

11 Major Civil Case Type Filings (1992-2014)

0

2000

4000

6000

8000

10000

12000

14000

16000

18000

20000

12465

15569 13220

18090

11287

Commercial Case Filings (1992-2014)

19921993

19941995

19961997

19981999

20002001

20022003

20042005

20062007

20082009

20102011

20122013

20140

2000

4000

6000

8000

10000

12000

4414

3681

5827

10245

3329

Commercial Cases Defined

Breach of Contract: complaint involving money dispute where a breach of contract is involved.

Commercial Contract: complaint involving money dispute where a contract is involved.

Commercial Non-Contract: complaint involving money dispute where no contract is involved.

11 Major Civil Case Types Trial Rates (1992 – 2014)

0.00%

1.00%

2.00%

3.00%

4.00%

5.00%

6.00%

3.8%

5.0%

3.6%

5.1%

4.6%

3.0%

4.3%

2.1%

3.9%

2.9%

Medical Malpractice Trials (1992–2014)

0.0%

2.0%

4.0%

6.0%

8.0%

10.0%

12.0%

5.7%

7.8%

3.4%3.2%

10.0%

6.4%

Motor Vehicle Tort Trials

19921994

19961998

20002002

20042006

20082010

20122014

0.0%

0.5%

1.0%

1.5%

2.0%

2.5%

3.0%

3.5%

4.0%

1.9% 1.7%

3.7%

2.8%

3.2%

2.5%

1.9%

3.1%

2.9%

1.8%

Personal Injury Trials (1992 – 2014)

0.0%

0.5%

1.0%

1.5%

2.0%

2.5%

3.0%

3.5%

4.0%

4.5%

5.0%

2.9%

4.4%

1.6%

4.4%

2.3%

1.3%

2.3%

Commercial Trials (1992-2014)

19921994

19961998

20002002

20042006

20082010

20122014

0

20

40

60

80

100

120

85

96

63

55

68

33

62

281992: 1.8% tried

2014: 0.7% tried

Commercial Summary Judgment Rates1992 5.5%

1993 5.0%1994 5.6%1995 5.1%1996 4.3%1997 3.5%1998 3.4%1999 3.6%2000 3.2%2001 3.3%2002 3.9%2003 3.7%2004 3.9%2005 4.1%2006 3.2%2007 2.1%2008 3.1%2009 3.4%2010 4.2%2011 3.0%2012 3.4%2013 2.7%2014 5.0%

The reduction in commercial trial rates is not attributable to increased use of summary judgments.

Summary judgment rates have remained fairly constant over time.

Commercial Case Settlement Rates1992 35.1%

1993 34.4%1994 33.8%1995 33.4%1996 34.0%1997 31.1%1998 28.5%1999 29.1%2000 27.6%2001 26.0%2002 24.8%2003 23.4%2004 22.2%2005 21.3%2006 22.1%2007 18.1%2008 15.6%2009 14.5%2010 14.1%2011 13.6%2012 13.7%2013 17.9%2014 22.3%

The reduction in commercial trial rates is not the result of an increase in pre-trial settlements.

Settlement rates have decreased, not increased over time.

Why the change in commercial case filings?

Are businesses less litigious now or are they taking their lawsuits elsewhere?

Federal court? Arbitration?

1997199

8199

9200

0200

1200

2200

3200

4200

5200

6200

7200

8200

9201

0201

1201

2201

3201

40

100

200

300

400

500

600

407377

347 350396

307 327 347315

355 338 356 375417

490 480431

400

W.D. WASHINGTON CONTRACT CASE FILINGS

Number of business transactionsGross domestic product (2001-2013)

20012002

20032004

20052006

20072008

20092010

20112012

2013$0

$200,000

$400,000

$600,000

$800,000

$1,000,000

$1,200,000

$1,400,000

$1,600,000

Gross Domestic Product Sea-Tac-Belle

What role is arbitration playing?

Fortune 1000 Company Views on Arbitration

Question 1997 2011

Used arbitration in last 3 years 80% 83%

Used arbitration in commercial/contract disputes

85% 62.3%

Provides more satisfactory process 60.5% 38.2%

Provides more satisfactory results 34.8% 26.0%

Provides more durable resolution 28.3% 18.6%

Likely or very likely to use arbitration in future

71.0% 50.2%

Unlikely or very unlikely to use arbitration in future

29% 49.9%

Reasons Companies Don’t Use Arbitration

Reason 1997 2011

Lack of appeal 54.3% 51.6%

Compromised outcomes 49.7% 47.0%

Unwillingness of opposing party 62.8% 44.9%

Arbitrators not following law 48.6% 44.1%

Lack of confidence in neutrals 48.3% 34.2%

Senior management refusing to use 35.0% 24.6%

Too costly 14.8% 22.9%

Repeat litigants prefer arbitration over first time litigants.

A litigant’s subjective estimate of its ability to win at the start of a dispute may shape the decision on where to file.

Personal injury litigants prefer jury trial more than other method of resolving a claim and more than any other litigant group.

If litigants had pre-existing relationship, they preferred mediation over any other adversarial procedure.

Are civil trials really vanishing?

Commercial trials may soon vanish from state courts. Not because litigants prefer federal court or arbitration.

Not because we are dismissing more cases on summary judgment.

Not because more lawsuits resolve through settlement than before.

Fewer commercial lawsuits are being filed in any court or arbitration forum.

Businesses are finding informal methods for resolving their disputes – perhaps through pre-litigation mediation or simply by negotiation.

Tort trials—personal injury, motor vehicle torts, medical malpractice—are alive and well.

Are civil trials vanishing?Judge Beth M. Andrus

American Judges Association

October 2015