The “Frivolous Lawsuit” Fallacy

It is widely believed that state courts are drowning in lawsuits. Many corporate lobbyists would have you believe that tort lawsuits are on the rise, when in fact the opposite is true: tort lawsuits have declined sharply in recent years.

In 2015, less than two people out of 1,000 filed tort lawsuits, and tort cases accounted for just four percent of civil filings in state courts. Compare this to 1993, when roughly 10 people per 1,000 filed tort lawsuits and tort cases made up 16 percent of those filed. This downward trend has raised some concern among judges. If victims are no longer filing tort lawsuits, perhaps they no longer see the courts as a legitimate avenue for finding justice in civil cases.

Based on case percentages logged by over 20 states, this drop in tort lawsuit filings amounts to roughly 1.7 million cases. Conversely, contract cases have skyrocketed: they accounted for only 18 percent of filings in 1993, but now comprise roughly 51 percent.

What is the reason for the decline in tort lawsuits? For one, each state has its own restrictions on litigation, which sometimes prohibit victims from bringing lawsuits in instances where they would otherwise be willing to do so. Another reason is that it isn’t always affordable: the cost of bringing lawsuits has risen, and each individual must weigh whether it is worth it— especially when a win is not guaranteed. Finally, businesses have long tried to discredit lawyers and plaintiffs. The distrust they’ve sown has lowered public opinion of these groups, and may influence some wronged parties when they are deciding whether or not to file suit.

Caps on damages are another major factor: over 30 states have set maximum caps on compensation in medical malpractice cases. This practice began in the 1970s, and it has had a powerful influence on the number of cases filed. Tort filings plummeted a startling 45 percent between 2000 and 2015 in Kansas after noneconomic damages were capped. With the caps in place, many lawyers can not afford to take on low-income clients; they would not be able to pay the legal fees out of pocket, and any damages received would be capped at too low a number to make the investment worth it.

While many people believe frivolous lawsuits are clogging up state courts, this simply is not the case. Unfortunately, factors such as negative public opinion and caps on damages mean that victims have a harder time finding justice when they’ve been harmed.

Sources:

Cassens Weiss, Debra. “Tort Suits in State Courts Are ‘Down Sharply’ as Contract Claims Grow.” ABA Journal 26 July 2017.

Palazzolo, Joe. “We Won’t See You in Court: The Era of Tort Lawsuits is Waning.” The Wall Street Journal 24 July 2017.