The New Litigiousness

A final popular explanation for the liability insurance crisis is that the American people, for some indeterminate reason, have suddenly become more litigious, more eager to take perceived wrongs to court, and that judges and juries have supported this tendency by granting recovery more often and awarding higher damages than in earlier times.

This seems to be the theory that has motivated most of the forty-two state legislatures that have formed their tort systems in recent years. Proposals to cap damages, limit lawyers’ contingency fees, or restrict access to the courts would seem to be based on the idea that the number of suits and the amount of awards have gone beyond reasonable bounds.

To test the veracity of this theory, we must examine the answers to a series of questions: is it true that there is more litigation than in the past; do plaintiffs in fact win more often; are damage awards higher than before; and if so, why?