Pretrial Discovery and the Vanishing Trial

It’s not exactly news that civil trials in America are disappearing. The numbers are dramatic: When the Federal Rules of Civil Procedure took effect in 1938, roughly 20% of federal civil cases reached trial. By 1962, the trial rate had dropped to about 12%. In 2016, according to the article “Going, Going, But Not Quite Gone” in Duke Law Center for Judicial Studies’ Judicature magazine, approximately 1 percent of civil cases filed in federal court are decided via a formal trial before the factfinder, with jury trials accounting for just 0.7% of all civil dispositions. Across all jurisdictions, federal and state, somewhere between 95 and 99 percent of civil lawsuits resolve before any witness takes the stand.

Jury selection numbers tell a similar story. In 1996, over 10,000 juries were selected in federal district courts across the United States. By 2016, that number had fallen to 3,887.

Across all jurisdictions, federal and state, somewhere between 95 and 99 percent of civil lawsuits resolve before any witness takes the stand.

Legal scholars call this the “vanishing trial.” But what’s driving this phenomenon? Conventional wisdom often points to pretrial discovery — and depositions in particular — as a primary engine of pretrial resolution. The theory sounds compelling. The reality, however, turns out to be far more complicated than most litigators assume.

The Information Exchange Theory

The traditional (and widely accepted) argument linking discovery to settlement rests on a straightforward premise: When both sides know the same facts, they can predict the same trial outcome, and rational parties will settle rather than spend the time and money required to prove what everyone already knows.

Depositions play a special role in this theory. Unlike interrogatories or document requests, depositions reveal not just facts but the human beings behind them — their credibility, composure, and persuasiveness. After deposing key witnesses, experienced litigators can gauge how a jury might react, and that assessment often shapes settlement calculations on both sides.

Most litigation experts believe that the two-way exchange of information during the discovery process encourages resolution of cases without trial by making the same information available to both sides and by increasing the likelihood that both parties have the same expectation about the trial outcome.

This logic makes intuitive sense. The question is whether anyone has actually proved it.

The Empirical Gap

Here is where the story takes a surprising turn. In one relatively recent study ( an early draft is available on the Social Science Research Network website), researcher Kuo-Chang Huang observed that “no empirical study has ever been conducted in the United States” to determine whether pretrial discovery actually promotes settlements in civil litigation.

That information gap persists today. Most scholarship on the vanishing trial examines macro-level trends — the aggregate decline in trial rates, the expansion of summary judgment practice, and the growth of alternative dispute resolution — rather than isolating the specific contribution that depositions or other discovery tools make to pretrial resolution.

An empirical analysis published in the Journal of Economic Behavior & Organization offered a nuanced finding: while discovery does promote settlement, it functions as “approximately a breakeven proposition” for defendants. The reason? Defendants cannot extract the full settlement surplus that economic models predict, because real-world bargaining dynamics — fairness concerns, risk aversion, and strategic behavior — complicate the textbook theory.

Other Forces at Work

Discovery alone cannot explain the vanishing trial. Several other forces have reshaped how civil cases end.

Summary judgment expansion. A trio of U.S. Supreme Court rulings – Celotex Corp. v. Catrett, 477 U.S. 317 (1986),  Anderson v. Liberty Lobby, 477 U.S. 242 (1986), and Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 US 574 (1986) — dramatically lowered the bar for granting summary judgment under Rule 56, giving defendants a powerful tool for resolving cases before trial. Many cases that might once have settled after discovery now terminate on dispositive motions.

Mandatory mediation and arbitration. Court-ordered mediation programs have proliferated in both federal and state courts. Meanwhile, the expansion of mandatory arbitration agreements — particularly in employment and consumer contracts — has diverted millions of potential trial cases into private forums.

Judicial case management. Modern judges actively manage their dockets through scheduling orders, discovery conferences, and settlement conferences. A February 2025 RAND Corporation study examined how informal discovery conferences in the Los Angeles Superior Courts affect case outcomes — highlighting the growing judicial role in steering cases toward resolution. RAND researchers found that judge-supervised discovery conferences were effective at reducing litigation costs by dramatically reducing the incidence of pretrial discovery motions.

A Question Worth Studying

The honest answer to whether pretrial discovery drives the vanishing trial is probably, in part, but no one has definitively measured how much. Hard evidence suggesting which forms of pretrial discovery are more effective at promoting settlements is similarly scant. Yes, the theoretical case is strong. But the empirical evidence remains thin. The practical reality remains: A web of interconnected factors — discovery, dispositive motions, economics, judicial management, and alternative dispute resolution — together produce the 95-99% pretrial resolution rate that defines modern American litigation.

For litigators and their clients, the gap between conventional wisdom and empirical proof presents both a challenge and an opportunity. Lawyers who understand that depositions serve multiple strategic purposes — not just fact-gathering, but preservation of evidence, witness assessment, impeachment preparation, and settlement leverage — are better positioned to use discovery efficiently and resolve cases on favorable terms.