Reading the Tort Litigation Tea Leaves: What’s Going on in the Civil Liability System?

Abstract

The recent presidential campaign controversy about the state of the civil justice system provides an incentive for revisiting the question of how to properly characterize the tort litigation system. How many tort cases are there? What is the aggregate rate of growth in tort filings? How different or alike are filing patterns, trial outcomes, and costs for different types of torts? A review of the available data suggests that the liability system is continuing to grow, but that the patterns of growth are far more complex and more difficult to explain than was suggested in the recent presidential campaign. New data support the idea that the tort liability system comprises multiple “worlds” of litigation, but raise questions about what is actually going on in each of these worlds. Current data are inadequate for answering these questions. Without a program of sustained research on litigation behavior and outcomes, we will be forced to rely on “reading the tea leaves” to assess trends in the civil justice system.