The state and federal court systems have at least two levels of courts. At the first level are the trial courts. The higher levels review the decisions of the trial courts. Most of the written legal decisions come from these higher-level courts. This can distort the law because more than 90 percent of lawsuits are settled before trial, and many of those that are tried are settled before a final verdict. Among those that are tried, only a small number are reviewed by higher courts. Cases become the subject of higher court review because they represent a departure from accepted law, they involve peculiar facts, or counsel made an error preparing or presenting the case. Even when a case is reviewed, the higher court may choose to uphold the trial court without an opinion. The tendency is for courts to write detailed legal opinions only when they are modifying the law.

The appellate process is lengthy. In many urban jurisdictions, it takes years to get a case to trial and nearly as long to appeal the case to a higher court. Rarely is a legal issue reviewed by a higher court in less than 5 years. Eight to 10 years is much more likely, with complex cases often appearing to be immortal. Cases involving the internment of the Americans of Japanese ancestry were still on appeal after 40 years. When the federal or state Supreme Court finally rules, the opinion is often peripheral to the legal conflict that resulted in the litigation. This is especially common in medical jurisprudence. In the Cruzan v. Director, Missouri Dept. of Health [ Cruzan by Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 (1990) ] case, which dealt with a family’s right to terminate a patient’s life support, the court made a narrow ruling on the right of a state to set evidentiary standards. Many landmark civil rights cases turn on arcane questions about the procedure of determining whether federal or state law applies in a given case.