1. Is there more tort litigation than before?

Approximately 95% of all tort cases are filed in the state court systems. [13] Because many state courts do not differentiate between the various types of civil lawsuits filed (torts, contract and commercial disputes) the growth in tort litigation can only be estimated. Nonetheless, the growth of tort suits seems to be slow and gradual: the National Center for State Courts (NCSC), a private, non-profit group, estimates it at just 2.3% per year between 1981 and 1984, the period over which the current insurance crisis materialized. [14] The RAND Corporation’s Institute for Civil Justice (ICJ) places the growth rate slightly higher, at 3.9%. [15] This growth rate is lower if adjusted for population growth.

However, this is not the whole story, because this data lump together all types of tort cases, including products liability, where the insurance crisis has been concentrated, and more "routine" cases, such as automobile accidents. In an attempt to determine the relative growth rates of different types of tort cases, ICJ extensively analyzed data from Cook County, Illinois (Chicago), and San Francisco, two districts for which reliable data is available. The results show that auto injury cases have increased at roughly the same rate as population growth. However, other personal injury cases, in particular products liability cases, have grown at a much faster rate than population. The most explosive growth of all is concentrated in the area of mass torts, such as DES [16], asbestos, and agent orange litigation. [17]

These findings correlate strongly with the thesis of litigiousnous. They would not only seem to explain why an insurance crisis exists, but why it is concentrated in particular lines – namely, products liability, medical malpractice and certain other commercial liability lines – but not in auto, fire, and others. However, it is not clear just why people should suddenly be more eager to take only certain types of claims to court.

One explanation might be that there are simply more of these types of torts occurring. However, this possibility, once injuries are adjusted for population growth (as with the figures on the number of tort suits) is probably incorrect. As societies grow weathier, they grow safer:

"There is hardly a product in use today – a car, plane, boiler, municipal water system, drug, vaccine, or hypodermic syringe – that is not many times safer than its counterpart of a generation or even a decade ago." [18]

Likewise, disease, including cancer, has sharply decreased on a per capita basis. [19] Who can doubt that today’s physicians are more skilled, and have better facilities at their disposal, than those of fifty years ago? Today life expectancies are far longer, and accidental deaths per capita far fewer, than fifty years ago. Our world is more complex, but it is nonetheless far safer.

A second explanation for the fact that lawsuits are increasing rapidly only in select lines is the theory that a glut of lawyers has resulted in frivolous lawsuits, and/or more legitimate lawsuits. Presumably, these suits are concentrated in products liability lines because such suits are the most lucrative for attorneys. While there are certainly more lawyers than in decades past, this theory falters on examination.

We would not expect such a pattern to continue if plaintiffs were not able to win a significant number of these suits, since the costs of instigating and carrying forward a lawsuit, particularly in such complex areas as products liability and mass torts, can be as devastating to plaintiffs as to defendants. While it is often pointed out that plaintiffs, paying contingency fees, have little to lose from filing a lawsuit, it is overlooked that the lawyers in such a case have little to gain from a frivolous suit.

So if plaintiffs are winning these new suits with greater frequency than before, the question is why? One possibility is that many people who have had legitimate claims in the past have been unable to bring them to court, either because they did not know their rights or because they could not find an attorney, in which case the increase in litigation should be considered a good thing. [20] A second possibility is that rules of law have been changed in a way that encourages, and makes plaintiffs more likely to be successful in a legal action. Before considering this latter proposition, we should first see if, in fact, plaintiffs are more likely to win lawsuits or get higher damages awards than in the past.