Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 1. Introduction
those claims, and whether to withdraw from prosecuting them. The result is that almost all parties
settle their disputes before trial.
Settlement has been widespread in American tort law for as long as modern tort law has
existed, for more than a century and a half, and there is reason to think settlement is growing even
more common in the past fifty years. In 2003, the American Bar Association Litigation Section
held a symposium titled The Vanishing Trial, which concluded that the “portion of federal civil
cases resolved by federal trial fell from 11.5 percent [of all filings] in 1962 to 1.8 percent in
2002.” Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 459 (2004). Between 2008 and 2012,
a mere “0.56 percent or slightly more than one-half of one percent of all terminations” occurred
by civil jury trials. Charles S. Coody, Vanishing Trial Skills, A.B.A. (May 22, 2013),
https://perma.cc/QE5C-LPNS. The following chart, compiled by Marc Galanter, who led the
ABA study, and his co-author, shows the stark picture of settlement in civil litigation generally:
Percentage of Civil Terminations During or After Trial, U.S. District Courts, 1962-2010
Source: Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, POUND
CIVIL JUSTICE INST. 1, 3 (2011), https://perma.cc/9NFE-AP2M.
Parties settle because, as the Vosburgs and Putneys learned, litigation is expensive and
time-consuming. Many parties are risk-averse; they have a preference for the certainty that
settlement offers. Moreover, there is reason to think that on the plaintiffs’ side, lawyers paid on a
contingency basis, as a percentage of any settlement or award, will have an interest in avoiding
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