This week, the Minnesota Chapter of the Federal Bar Association enjoyed U.S. District Court Chief Judge John R. Tunheim’s yearly update on the state of the United States District Court for the district of Minnesota.

For Minnesota Litigator, the lasting message was about the stress and  the hardship of the partial shutdown of the federal government, which Judge Tunheim emphasized a few times in his presentation. For those of us who are not directly involved, who are not federal employees nor related to any, it was a vivid reminder that this is not “annoying political squabbling” for federal employees and their families. It is a time of genuine anxiety, fear, and concern; it poses a potential imminent threat to their financial well-being (if it is not already causing actual disruption in their lives).

Turning to less pressing and distressing matters, Judge Tunheim presented U.S. District Court statistics of case filings and trials. Here are our takeaways: (1) there was very little change in the number of filings between 2017 and 2018; and (2) while there were over 2,000 civil cases filed in 2018, there were fewer than 20 civil trials. Of course, it is unlikely that any of the 20 civil trials involved any of the 2,000+ cases filed the same year, but we think one can fairly suggest that a civil trial is about a 1% likelihood for any randomly chosen civil lawsuit.

What this means for civil litigators and their clients is extraordinarily difficult, if not impossible, to say.

First, the statistic could be misleading. If, for example, one broke down the data to look at particular types of civil cases (e.g., medical malpractice, personal injury, etc., etc.), the 1% statistic might be far off.

Second, civil litigants who behave as if trial is not a genuine risk might, in fact, heighten the risk by not taking the threat seriously.

“A Tough Knot to Crack” (photo by Jay Fanelli)

So, it is a bit of an enigma. As in the case of disaster preparedness or “black swan events,” one must “ride two horses at once,” as we like to put it. One must litigate with the high expectation of some resolution, one way or another, before a trial, while preparing for the remote contingency that one will be the “lottery winner” (or loser, depending on your appetite for trial) who goes all the way to and through trial…

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