Tort Law, the Wall Street Journal, and the Urgent need for Public Education.

27 July 2017

When even the Wall Street Journal says that “We Won’t See You in Court: The Era of Tort Lawsuits Is Waning,” you know that you’ve got a problem.

In a recent front Page article the Wall Street Journal noted two completely incongruous facts: 

  1. The number of lawsuits is dwindling, from 10 lawsuits per 1,000 people in 1993, to 2 lawsuits per 1,000 people today: 

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.

Tort cases declined from 16% of civil filings in state courts in 1993 to about 4% in 2015, a difference of more than 1.7 million cases nationwide, according to an analysis of annual reports from the National Center for State Courts.

Tort lawsuits now account for less than 5% of all civil filings in state courts.

That is the reality. 

But the perception is completely different:

  1. “An election-night poll last November by Public Opinion Strategies showed that 87% of voters agreed that there are ‘too many lawsuits filed in America.’”

And the Journal said publicly what has long been known:  This decline is lawsuits is the result of “a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.”

It seems to be working.  Americans with garden-variety cases no longer see courts as an affordable way to seek redress for their injuries. 

The slump in tort filings coincides with dwindling membership in some state trial-lawyer associations. It follows a decades-long public-relations campaign highlighting wrongdoing by trial lawyers. 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.

Worse still, the opponents of access to the courts, and the civil justice system are still not done. Despite the evidence of many fewer lawsuits, the head of the U.S. Chamber of Commerce is quoted as “saying that while state measures have ‘weeded out some frivolous lawsuits,’ litigation abuse remains a problem. ‘The American public wholeheartedly agrees there are too many lawsuits in the country,’ she says.”

This is simply not true.  And as a result, many thousands of grievously injured people never get compensation; and wrongdoers get away with it.  They are never held accountable, and so are free to continue injuring others.  Trial by jury and tort are the most powerful weapons of the weak – together they let individuals hold any wrongdoer accountable.  This is a system that works, and must be preserved.

This article is very bad news.  It is bad to watch the erosion of the tort system; worse to watch the erosion of the court system; and worst of all to watch the erosion of American faith in our system of civil justice.

This is why there is such an urgent need to expand public education about how trial by jury really works, and how tort law benefits all of us. 

This is why the American Museum of Tort Law exists. 

Thank you.

Rick Newman, Esq.
Executive Director
American Museum of Tort Law