Trial by Preview

Abstract

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of previewing the evidence is intertwined with how well the parties know their future audience — that is, the judge or the jury who will be the finder of fact at trial. Both theory and policy have focused narrowly on previewing the evidence, while barely noticing the complementary effect of previewing the audience. How this interplay might affect leading theories of settlement has yet to be articulated. This Essay begins to fill the gap.

This Essay also presents preliminary empirical findings from a policy experiment in the federal courts, arising from recent reforms in civil procedure. These data suggest that the current use of evidentiary previews may be driving a wedge between trials by jury and trials by judge. Trials are “vanishing” indeed — but not all trials vanish alike. Preview policies may be accelerating a decline in bench trials more than in jury trials. New policy concerns emerge from both the data and the theoretical analysis, and this Essay explores how an awareness of asymmetric preview effects might inform current debates about procedural values and policy design.

Keywords: Civil procedure, trial, settlement, litigation, judges, juries