2. Are Plaintiffs More Likely to Win Verdicts or Large Damage Awards Than in the Past?

Again studying data from Cook County and San Francisco, ICJ determined that, "median awards have been strikingly stable over a 25-year period." (The median is the midpoint in the distribution of jury awards.) However, when the data was separated by types of claims, ICJ found that, "the median for product cases has risen very sharply." Looking next at average awards in each jurisdiction, ICJ found that the average award in Cook County, adjusted for inflation, increased from $59,000 in the period 1960-1964 to $187,000 for 1980-1984. In San Francisco, the increase was from $66,000 in 1960-1964 to $302,000 in 1980-1984. Though this upward trend did apply to routine torts such as auto accidents, the most explosive growth, ranging from 200 percent to more than 1000 percent, came in the areas of products liability and professional malpractice. [21]

Furthermore, ICJ found that plaintiffs were "clearly" more likely to win in the 1980s than they had been 20 years earlier. Multiplying the probability of winning a lawsuit by the average award, ICJ created an "expected" award, i.e. what a plaintiff was likely to receive for what might be deemed an "average" suit. The result showed that over the study period, the expected award for routine torts, adjusted for inflation, rose by 14O percent to 260 percent, while the expected award in products liability cases rose between 400 percent and 900 percent. [22]

Finally, the data showed that:

… juries are likely to award substantially more money in a product liability, malpractice, or work injury case than in an auto accident case for an injury of the same degree of severity. And the premium awarded to these kinds of cases has been increasing over time. Juries also award more money when the defendants are institutions or organizations rather than individuals – the ‘deep pocket’ effect. (Emphasis in original). [23]

It would appear from the ICJ data, then, that there has been a real increase in both the value of damage awards and the probability of a plaintiff winning his case for all types of torts. However, in auto and other routine torts, neither increase seems sufficient to set off any type of insurance "crisis". Nor has there been any real increase in the number of routine tort suits filed. However, in products liability cases, all three factors – the number of lawsuits, the probability of winning, and the average damage award, – have skyrocketed over the past 25 years, with the fastest growth coming in the 1980s. [24]

This would indicate that those who claim the crisis is the result of a new litigious attitude throughout society are, to a large extent, correct. Further, the solutions widely proposed, such as caps on awards and forcing cases into private arbitration, should have a positive effect. But this answer continues to beg the question of why this change should be taking place, and why only in certain types of tort cases and not in others.

It is possible that social, anthropological, and psychological explanations may be available to account for this phenomenon. However, it is more likely that these trends towards more lawsuits and higher damages in certain types of cases are the result of changes in legal doctrine that have made such lawsuits more profitable for plaintiffs. Failure to recognize these changes as the root cause of the problem leads to an incomplete understanding of the problem and, thus, to solutions that may have positive effects but are equally incomplete.