Tort Reform Myths

Despite efforts by plaintiffs' attorneys to educate the public (and thus potential jurors), those calling for "tort reform" have continued to promote the belief that plaintiffs are using the justice system as a lottery. It is important, therefore, to continue to educate citizens regarding the justice system and tort law.

The so-called "Tort Reformers" have made many false and exaggerated claims condemning plaintiff law. In a 2000 report entitled "Tort Trials and Verdicts in Large Counties, 1996," the Department of Justice's Bureau of Justice Statistics disproved many of the unsavory claims made by opponents of our current justice system. The claims disproved by the report included the following:

Punitive damages are often awarded, and the amounts are too high.

False. This myth surfaced because of a few highly publicized cases in which plaintiffs received millions of dollars in punitive damages. However, the Bureau of Justice Statistics' study found that punitive damages are awarded in only a small number of cases, and that the amounts are usually reasonable. Statistically, the report found that punitive damages were awarded in only 3.3% of tort trials won by plaintiffs in 1996. In those cases, the average amount of punitive damages awarded was $38,000.

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Courts continue to increase awards to plaintiffs, and these awards have grown out of control.

False. The study showed that awards for plaintiffs including economic and punitive damages are decreasing – not increasing! Recently, juries have been awarding smaller amounts as damages to plaintiffs, especially in smaller cases such as those involving automobile accidents. Between 1992 and 1996, the average jury award declined by 47%, from $57,000 to $30,000.

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Tort reform must involve caps.

False. There are many potential reform systems that states can employ that do not require caps. These include placing restrictions on venue shopping, joint-and-several liability, and class-action reforms that would reduce the number of plaintiffs and amounts of payouts. Reform could also include other methods of reducing frivolous lawsuits and punishing the actions of unethical attorneys, none of which would involve imposing caps.

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Juries tend to ignore the law because they sympathize with plaintiffs. They are more likely than a judge to award punitive damages.

False. The Bureau of Justice Statistics' report showed that judges are often more likely to decide in favor of a plaintiff than juries. Of the 48% of tort trials included in the study in which the plaintiffs were successful, 57% were decided by judges. The study found that the likelihood of a plaintiff being successful depended on the type of case he or she presented. In premises liability, products liability, and medical malpractice cases, judges tended to look more favorably upon a plaintiff than juries. For example, in the premises liability trials included in the study, judges decided in favor of the plaintiff 52% of the time versus 38% by a jury. Furthermore, in the cases included in the study, automobile accident plaintiffs won 63% of cases tried before a judge, and only 57% tried before a jury. Finally, in medical malpractice, the study found that only 23% of the cases tried before a jury ended in favorable decisions for the plaintiff as opposed to 38% of the medical malpractice cases tried before a judge. Also, the study found that plaintiffs seeking punitive damages were much more likely to be successful in a bench trial than a jury trial. In tort trials tried in 1996, judges awarded punitive damages to 8% of victims. Juries awarded punitive damages to only 3% of victims.

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The justice system greatly favors the plaintiff and has become a lottery system.

False. Compensatory and punitive damages are actually much smaller than "tort reformers" would like the public to believe. Whether handed out by judges or juries, the median award to plaintiffs winning their tort trials is $31,000.

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Tort plaintiffs are devastating American businesses.

False. A high percentage of tort claims included in the study (42%) involved individuals suing one another – not individuals suing businesses. The study found that only 39% of tort claims involved an individual suing a business. For this reason, the claim that American businesses would greatly benefit from tort reform is false.

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Federal legislation is needed to curb medical malpractice and products liability claims.

False. Products liability and medical malpractice cases are not overloading or overextending our courts. Medical malpractice comprised only 11% of tort cases included in the study, and defective products comprised only 2.3% (these figures do not include asbestos cases, which accounted for another 1.8%). By contrast, 49% of tort cases included in the study involved automobile accidents.

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