Talia Fisher*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


The future of trial lies in customization. Throughout the Anglo-American world, the public model of criminal and civil procedure is gradually giving way to a private contractual paradigm, one which allows the litigating parties to tailor the evidentiary and procedural landscape of trial to fit their specific needs and preferences. Procedural and evidence rules are shifting from mandatory safeguards of public values to default rules and bargaining chips within the hands of the litigating parties. There is growing recognition in the ability of litigating parties in civil trials and of defendants in criminal trials to waive evidentiary and procedural rights, such as the right of cross-examination, the right to trial by jury, or the right to appeal. Courts are exhibiting a willingness to enforce choice of procedure and choice of evidence agreements, such as agreements to restrict the presentation of otherwise admissible evidence or to allow for presentation of otherwise inadmissible evidence.

Original languageEnglish
Pages (from-to)149-167
Number of pages19
JournalAmerican Philosophical Quarterly
Issue number2
StatePublished - 1 Apr 2023


  • civil procedure
  • criminal procedure
  • customized litigation
  • procedural waivers
  • the adversarial model


Dive into the research topics of 'TRIAL BY DESIGN'. Together they form a unique fingerprint.

Cite this