For the past 55 years, the number of civil cases disposed of by trials in all courts has continuously shrunk. This is a bad thing. The only thing that is even more dangerous than this is that the number of nonlawyers who are unaware of this issue. In fact, a recent study concluded that 80% of the public has no idea that this is occurring.
There are several factors that are responsible for this change that are unable to be changed by the public. Some of these factors are: the exhaustive pretrial discovery period; procedural screens such as Twombly, Masushita, and Daubert; the focus on judicial efficiency, etc.
However, some other factors are able to be reversed. Some of these factors are: the expense of discovery; the lack of real trial lawyers; public ignorance; judicial insistence on mediation as a precondition for trial date setting. Out of these factors, the most important factor that is able to be reversed is the lack of real trial lawyers.
There are not many real trial lawyers anymore because of the scarcity of trials, and the nervousness behind hiring an inexperienced lawyer. Thus, more often than not, most cases get settled outside of court, through arbitration. This leaves money on the table for both plaintiffs and lawyers.
The easiest way to increase the number of real trial lawyers throughout the country is through the utilization of litigation financing. With litigation financing, plaintiffs no longer assume any risk. Therefore, they are more likely to hire an inexperienced attorney. On the flip side, plaintiffs that receive financing are able to pay their attorneys per a billable hourly basis. This proves to be a win-win.
With less fear, and more assistance, litigation financing will become a nationwide juggernaut. As such, man bench and bar committees have seen that litigation financing is a proper solution and have actively encouraged it. With this industry, the justice system is likely to change for the better.
Keywords: litigation finance, lawyers, reversed
Work Cited: Stephen Susman, How To Stop Civil Jury Trials From Becoming Extinct, Law360 (January 13, 2019)