Tort Law

Tort suits in state courts are 'down sharply' as contract claims grow

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The conventional wisdom that state courts are awash in tort lawsuits is wrong.

Tort lawsuits are “down sharply,” raising concerns among some judges that Americans no longer see the courts as a way to achieve justice in garden-variety civil cases, the Wall Street Journal (sub. req.) reports.

Fewer than two in 1,000 people filed tort suits in 2015, down from about 10 in 1,000 in 1993, the article reports, citing information from the National Center for State Courts.

In 2015, tort cases accounted for 4 percent of civil filings in state courts, down from 16 percent of civil filings in 1993. In raw numbers, the decline in filings amounts to more than 1.7 million cases. The numbers are estimates based on case percentages recorded by more than 20 states.

Contract cases, on the other hand, accounted for about 51 percent of civil cases filings in 2015, up from 18 percent in 1993.

Though mass tort cases are growing in federal courts, the reality is that most civil cases—about 98 percent of the total—are filed in state courts.

“A host of factors are fueling the decline” in tort suits, the article reports, “including state restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.”

Since the 1970s, more than 30 states have capped damages in medical-malpractice or other cases. In Kansas, where noneconomic damages are capped, tort filings fell 45 percent between 2000 and 2015. In Texas, which capped medical malpractice damages in 2003, tort cases dropped 27 percent between 1995 and 2014, according to an American Bar Foundation study. Tort cases not involving car accidents in Texas dropped 60 percent in that period.

American Bar Foundation researcher Stephen Daniels tells the Journal that plaintiffs’ lawyers in Texas reported they couldn’t afford to represent some low-earning clients because damages wouldn’t be high enough.

Plaintiffs lawyer Sean Harris, president-elect of the Ohio Association for Justice, sees another factor at play. “What word comes to mind when I say ‘frivolous’?” he asks the Wall Street Journal. Most people will answer “lawsuit,” and that is affecting attitudes. “If we go to trial, we know that we are going to face a hostile jury,” he says.

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