Significant decline over the past decade plus in the number of trials may have offset e-discovery spending increases

A meaty footnote in Michelle Beardsley’s article in the Fordham Law Review, Vol. 79 (2011) at 1924 (fn 314), cites several studies that have highlighted a dramatic drop in the number of trials in the United States. For example, there were roughly 45 percent fewer tort, contract, and real property cases in state and federal courts during the decade before 2001. This trend has been long term and gradual.

The moderating effect on general counsels’ budgets must have been as momentous, because the costs of litigation bulk so large and trial costs can be extreme (See my post of May 20, 2005: budget depletion just before trial.). Fewer trials, less expense.

The countervailing cost of e-discovery during the past decade may have masked the increasing scarcity of trials – and might even have caused more cases to settle. Either the daunting cost of document collection and production spurred resolutions or discovery clarified the strength of arguments and spurred settlement.

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