Especially federal court. The rules are written by a combination of biglaw practitioners and academics. It is becoming increasingly difficult to “have your day in court” if you are a civil plaintiff.
With certain vocal exceptions (i.e. Judge Young in Boston), the federal judiciary seems just fine with the disappearing trial.
I’ve done biglaw defense and small law plaintiff’s work (and things in between), and I tell you there’s a real problem with disappearing trials. First, no one knows the rules of evidence anymore, especially judges. Second, without the big fight at the end, more and more people (especially the know nothing litigators at biglaw) fight about small bullshit along the way. And you now have to engage them because rather than the battle at Waterloo (trial) the war is likely to be won or lost at some penny ante ambush in the backwoods (e.g. some discovery crap dispute or a Twombly motion). This doesn’t streamline dispute resolution, it undermines it and adds increased costs.
Long ago, we stopped deciding disputes between parties by either fistfight or gunfight. Yet the federal courts have been turned on their ear to the extent that to even get into court to resolve a dispute, you have to undergo some asinine formal rigidity overseen by some debutante.
