The number of civil jury trials held in federal court has dropped dramatically over the last 50 years. At the same time, the cost of litigating in federal court has increased to the point where it may no longer be feasible to litigate smaller cases. These are troubling trends. In response, some courts created expedited trial programs that allow the parties to bypass the costliest parts of the litigation process and skip ahead to a short trial. By taking the “fast track,” the parties can afford to litigate in federal court. And since the case is fast-forwarded to trial, dwindling trial rates get a badly needed boost. It seemed like a perfect solution to both problems. But the results have been disappointing. These fast-track programs have been mostly ignored, and they aren’t generating trials. Why have fast-track programs failed to catch on in federal court? To try to answer that question, we surveyed attorneys where one of these programs was available. We asked them why they did not use it and whether they would ever consider using it in the future. Our data reveal a complex network of concerns that influence plaintiffs’ and defense attorneys differently in different cases. In any particular case, one of the parties is likely to have at least one concern holding it back from giving consent. And if any party says no—for any reason—the fast track becomes a closed road. Our findings have important implications for the future of fast-track programs in federal court, and especially their role in stemming the decades-long decline in the civil jury trial rate.
