Litigation Trends Analysis

In the thick of the COVID-19 pandemic, getting in front of a judge for a trial was next to impossible. Trial dates were pushed ubiquitously, leaving a backlog in courts in virtually every jurisdiction. Now, in what people are calling a post-pandemic world, and as we adjust to new courtroom technology, one thing has been consistently present in many courts: an uptick in trials. Judges are squeezing in more trials than ever in an effort to unclog their otherwise backed up dockets.

Streamlining calendars seems to be the goal. In the San Francisco County Superior Court in California, a master calendar judge was assigning cases to judges irrespective of availability, just to get the cases in queue. To remedy the pitfalls of this approach, the master calendar department evenly distributed the cases to judges to get them resolved.

In the Bernalillo County Metropolitan Court in New Mexico, 1,000 prospective jurors appeared last week to accommodate the surge in criminal trials. In just one week, the Bernalillo Court saw eight jury trials. Second Judicial District Attorney Sam Bregman believes that “[t]his is just the beginning.” Surge in trials packs Bernalillo courthouse, Olivier Uyttebrouck (Feb. 19, 2023).

The courts’ willingness to hear witnesses remotely has increased the ability to get through a trial on short notice, as opposed to aligning schedules and potential travel. Judges occasionally have stacked schedules, with multiple trials beginning on the same date. Flexibility of attorneys, experts, and witnesses is key.

Part of the increase in trials is the actual increase in filings. Civil and criminal filings in the federal district courts are 28% higher than they were 20 years ago. Transactional Records Access Clearinghouse (TRAC) Analysis of U.S. District Court Data (available at https://www.uscourts.gov/statistics-reports/analysis-reports/federal-court-management-statistics). But the number of federal judges has only grown 4% in those 20 years. Consequently, it takes more time for each judge to handle their respectively increased dockets.

As we gear up for this wave of trials, attorneys should be prepared to adapt to the packed schedules of judges. Litigators wanting to utilize technology for efficient trials should continue to push for the resolution of matters on an expedited basis using methods such as remote testimony. Although this increase in trials may be temporary, experts are anticipating that it will continue through 2023 as courts tackle their backlogs.