We Won’t See You in Court: The Era of Tort Lawsuits Is Waning

Wall Street Journal
Monday, July 24, 2017

State restrictions, increasing cost and a long campaign by businesses has discouraged plaintiffs

Americans, reputed to be the most litigious people in the world, are filing far fewer lawsuits.

Fewer than two in 1,000 people—the alleged victims of inattentive motorists, medical malpractice, faulty products and other civil wrongs—filed tort lawsuits in 2015, an analysis of the latest available data collected by the National Center for State Courts shows. That is down sharply from 1993, when about 10 in 1,000 Americans filed such suits.

A host of factors are fueling the decline, 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.

The nationwide ebb in lawsuits, which confounds the public perception of courts choked with tort claims, has broad ramifications for businesses, doctors, patients, lawyers and the courts themselves.…

Stephen Daniels, a research professor at the American Bar Foundation who co-wrote the Texas study, says advocates of lawsuit restrictions have succeeded in making many tort cases economically impossible for trial lawyers to bring.

Plaintiffs’ lawyers typically front the cost of litigation and take their fees on the back end, usually one-third of whatever their clients recover.

In tort lawsuits, damages come in three varieties. Economic damages are meant to make the plaintiff whole. They cover lost wages, medical costs or other economic harms caused by others. Noneconomic damages ameliorate intangible harms such as pain and suffering, while punitive damages are meant to punish and deter.

More than 30 states have capped damages in medical malpractice or other cases since the 1970s, according to the Center for Justice & Democracy, a group that opposes such laws. In 2003, Texas capped damages in medical-malpractice cases at $250,000.

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