American Judges Association


Date of this Version

December 2006


Published in Court Review: The Journal of the American Judges Association, 42:3-4 (2006), pp. 34-39. Copyright © 2006 National Center for State Courts. Used by permission. Online at


Ninety-eight percent of civil cases settle,1 right? Well, not exactly. Although claims of settlement rates of 90% and above are cited frequently, settlement rates really are not that high. Many commentators start with an accurate picture of low, single-digit trial rates (typically 2%-3%), but then they inappropriately assume the inverse—namely, that all the remaining cases are settled. Commentators ignore the fact that a significant proportion of cases are terminated for reasons other than trial or settlement, and their mistake goes undetected because most state judicial systems do not collect any information about settlements.

On the other hand, other people, speaking more cautiously, say that “most cases” settle. Is this opinion closer to the mark or does this opinion vastly underestimate the rate of settlement? Knowing which statement about the percentage of settlements is true and knowing the statistics supporting the most accurate statement about settlements should be important information for judges, lawyers, clients, and policy makers. Unfortunately, accurate empirical data about settlement rates does not exist.

Although information about settlement is mainly anecdotal, the information about case filings is available, empirical, and accurate. Over 100 million lawsuits were filed in state and federal courts in the United States in 2003. However, that figure includes nearly 55 million traffic-court cases. Focusing only on civil cases, there were nonetheless over 17 million civil cases filed in state and federal courts in the United States in 2003, with nearly 8 million of those cases filed in state courts of general jurisdiction. Generally, less than 3% of civil cases reach a trial verdict, and less than 1% of all civil dispositions are jury trials, although rates of non-jury trials can vary significantly across states. Therefore, perhaps up to 97% of cases are resolved by means other than by trial.

The pattern of dispositions and trials in Hawaii courts seems to be very much the same as the national pattern. There were 3,661 civil cases filed in Hawaii circuit courts in 2004- 2005. Of the 4,127 cases terminated during that same time period, less than 2% (only 79 cases or 1.91%) reached a trial verdict. Jury trials were extremely rare in Hawaii during this time period. There were only 16 completed civil jury trials in Hawaii Circuit Courts in 2004-2005, which is a jury trial rate of less than 0.4%.

Despite many generalizations about the prevalence of settlement and the growing focus on and use of alternative dispute resolution, empirical research on settlement continues to be very limited. Therefore, the Center for Alternative Dispute Resolution, a program within the State of Hawaii Judiciary, and the University of Hawaii Law School collaborated to study settlements in civil cases in Hawaii Circuit Courts. We hoped to learn as much as we could about civil litigation in general, civil settlements in particular, and other information that might be helpful in facilitating settlements and making civil case processing more effective.

What happens in the vast majority of civil lawsuits that are not resolved by trial was the subject of our study. The study posed some basic questions about settlement: How many cases settle? What kinds of cases settle? When do cases settle? Why do cases settle? We also wanted to learn more about the length of time cases remained open as well as the type and amount of pretrial discovery. Because excessive cost and delay have long been considered the two primary evils of the civil justice system, any information we could learn about these topics would be helpful. Finally, we also wanted to compile some baseline statistics about litigation in Hawaii that might be helpful in the future for policy makers, both locally and nationally.

Included in

Jurisprudence Commons