Saturday, November 28, 2009
New study on tort case statistics
The US Dept of Justice Bureau of Justice Statistics has issued a report on tort cases that concludes, among many other things, that state court tort suits that make it to trial declined steadily over a 10-year period ending in 2005. The study is available here. Some are arguing this shows that tort reformers' argument that courts are clogged down with frivolous tort suits is wrong. (See here for example) Although I think tort reformers are wrong, I am not sure that the findings in this study support that conclusion all that clearly. I think it is important to determine why torts cases are down. In fact, they may be down because of the effect of tort reform initiatives. Everyone knows that the goal of tort reform is to make it more difficult for victims to recover for their damages or to limit how much they can recover. If a tort reform initiative is effective, it will make the number of tort cases go down. The number of tort cases filed in any given year does not really tell us much, and the number of cases that go to trial tells us even less since everyone knows that most cases settle. On the other hand, tort reformers also try to overstate the case. They often assume that fewer cases filed means that tort reform initiatives have a positive effect by lowering the costs of having to deal with frivolous litigation. The problem with this argument is simiple: it assumes that fewer cases filed necessarily means fewer frivolous cases filed. (Or to put it more bluntly, it essentially assumes that all cases are frivolous - which, when you think about it is consistent with the policy behind tort reform, but I digress....) That is not necessarily the case. The fact that the number of cases filed has gone down could mean that there are fewer frivolous cases filed (which would be a good thing), or it could mean that there are fewer meritorious cases filed (which is a bad thing). And that is the problem with most (if not all) tort reform initiatives, they don't work to prevent the frivolous cases while allowing the valid ones. They simply make it more difficult for everyone. What I'd like to see is statistics as to how many cases are dismissed because the court specifically finds them frivolous, and on how that number has changed over the years.