Robert P. Burns


On his book The Death of the American Trial

Cover Interview of May 31, 2009

The wide angle

I have practiced law for thirty-five years.  I am continually moved by the power and depth of the understanding of human situations that the trial provides.  This book is an effort to share that experience and to urge why we should not allow it to “go gently into that good night.”

The book begins with a simple description of what happens at trial and why it matters.  (TV drama provides a very distorting lens.)  The trial cares about factual accuracy and, unlike press conferences and congressional hearings, contains methods to achieve it.  This is so basic that its importance is easy to miss.

Falsehood, one philosopher wrote, is the handmaiden of injustice.  The trial is simple, yet comprehensive.  Political purpose, legal structure, and ordinary moral sensibility come together under the “discipline of the evidence.”  The trial is “the central institution of law as we know it.”

The book then recounts how establishing the vitality of the jury trial was absolutely central to the Founding Fathers.  In many different ways, ensuring the availability of trial underlies the entire structure of the Bill of Rights.  And the book tells the story of how the trial’s shape has been at the center of political controversy ever since.

This is no accident.  The trial’s availability and nature define the most essential tensions that make up our national life.  They define the balance between face-to-face argument and governance by autonomous systems.  (The face-to-face character of the trials has always reminded us that legal proceedings really are somehow about justice.)  The trial defines the tension between public and confidential decision-making and between personally responsible judgment and bureaucratic “rule by nobody.”  Those tensions also determine the balance between citizen participation and deference to authority, between contextual good judgment and reliance on rules.  They supplement national regulation in qualifying bureaucracies and markets that operate according to their own internal dynamics.  The trial allows us to strike a balance between deciding what we want to accomplish and who we want to be. 

Why is the trial suffering a terminal illness?  We can look through a microscope or a telescope to try to answer the question.  If we look closely, we will see the atrophy of the trial skills that allow lawyers to try cases and a change in the culture of judging.  Many judges have embraced “managerial judging,” often designed to avoid trial by settlement or summary disposition.  Costs have risen.  Recent changes in legal doctrine have allowed judges to dismiss or decide cases without trial.  If we take a very broad view, we can see the death of the trial as an aspect of glacial changes in our social life.  In particular, we may be experiencing a drift toward an “imperial-bureaucratic” regime.  The useful divisions of our modes of social ordering—among political, legal, moral, and informal—may be disappearing in favor of a more monolithic social system.

It is true that our trials do not always realize their potential.  But this is not because of any flaws in their basic practices.  Rather, the failings are the results of the bureaucratic and market structures within which our trials must function.  The book makes some suggestions as to reforms which would improve trial practices.

The Death of the American Trial is not, however, an explanation of the death of the trial.  That would suggest that the death of the trial is inevitable.  Rather, the book is an appeal to citizens, lawyers, and judges to act within the spaces of freedom that our institutions provide to halt this decline and reinvigorate an important aspect of our democracy.