Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates. And Privatized Processes

Abstract

Trials are a vivid variable in the world of litigation, as reflected in the title of this colloquium, Civil Litigation Ethics at a Time of Vanishing Trials. In this Introduction, I argue that the challenges for lawyers loom larger than those reflected in the declining rate of trials. More facets of contemporary dispute resolution need to be engaged when contemplating the topics and roles that legal ethics must address in the decades to come. Millions of litigants appear in civil cases without attorneys. When clients are represented, they are often grouped by judges and lawyers into aggregates, created through a variety of methods, both formal and informal. Trial rates are down; one in one hundred federal civil cases goes to trial. Less in focus is that case filings are also flattening. To the extent people do go to court, they are often greeted by mandates to resolve disputes privately. Courts are now venues in which public adjudication has taken a back seat to alternative dispute resolution, which generally occurs outside the public purview. In short, vanishing trials are but a piece of the privatization and relocation of process. Dispute diffusion captures the eclipse of adjudication in courts as the central paradigm of government-based dispute resolution. Can and will lawyers impose regulation on themselves in response? Ought regulations be placed instead in statutes and court rules? And what shape should such provisions take, with what potential impact on the norms of lawyering and the body politic? This colloquium offers a series of essays responding to aspects of these new and daunting challenges.