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Rhetoric vs Reality on Lawsuits:
Bush Dept. of Justice Says Litigation Down 80%

[Column 360, October 24, 2005] | Archived Columns

By Ken Suggs*

Ever since he was governor of Texas, George W. Bush has made criticizing lawsuits and the civil justice system one of his signature issues.

Since taking office, President Bush has spoken of "frivolous" or "junk" lawsuits over 150 times. He has blamed trial lawyers and the civil justice system for everything from the federal budget deficit to a weak economy to high health care costs, and even a lack of flu vaccines.

So when the Bush Administration's own Department of Justice (DOJ) released a report in August about lawsuits in federal courts, you might expect it to back up what the president has been saying for years about the "litigation explosion."

Instead, the Justice Department said just the opposite.

In a report entitled "Federal Tort Trials and Verdicts," not only did the Bush Department of Justice not find an explosion of litigation, it found that the number of federal tort—or personal injury—trials has steadily declined 80% since 1985.

The Department of Justice says there are two main reasons for the steady decline in litigation.

First, there's been a steadily growing use of alternative dispute resolution rather than trials. In fact, the American Association for Justice has been a long-time supporter of voluntary mediation to help the parties in a case resolve their conflict before ever entering a courtroom.

According to the DOJ, 98% of cases are resolved by mediation, settled out of court, or handled in some non-trial disposition. Only 2% of cases require trials to be resolved.

Second, the Department of Justice says that the increasing cost and complexity of bringing a case to trial has made it harder than ever for an injured consumer to get into the courtroom in the first place.

The facts simply don't back up the storyline that corporate CEOs have been trying to sell to the American people about lawsuits.

The decrease in lawsuits at the federal level is also reflected in state court trends. The Bureau of Justice Statistics, a division of the Department of Justice, performed a study of civil trials in state courts and found that the number of civil trials dropped by 47% between 1992 and 2001. The number of personal injury cases decreased 31.8% during the same period.

The trend in the amount of compensation juries provide to victims is also down. The median inflation-adjusted compensation in all tort cases dropped 56.3% between 1992 and 2001 to $28,000.

What about medical malpractice lawsuits? Isn't that particular type of litigation increasing? Actually, no. For all the hype about medical malpractice lawsuits, the Kaiser Family Foundation found that total malpractice payments nationwide have fallen 4% per year since 2001, adjusted for medical inflation.

The non-partisan, official research branch of the U.S. Congress, the Congressional Budget Office, has said that rather than driving health care costs, all the costs associated with malpractice and malpractice lawsuits account for less than 2% of overall health care expenses.

Despite, or perhaps because of, the decrease in malpractice litigation, 100,000 Americans continue to die every year because hospitals are negligent or make preventable errors.

So with lawsuits decreasing, whose interests are served by making it even harder for injured families to bring a legitimate case?

Just look at the special interests spending tens of millions of dollars every year to lobby for legal restrictions. It's the insurance company CEOs, who are always seeking to limit the companies' liability and avoid paying legitimate claims - even after natural disasters like Hurricane Katrina. It's the drug company CEOs, who continue to knowingly profit from deadly drugs like Vioxx. And it's the chemical and oil company CEOs, who pollute our families' air and water but don't want to pay to clean it up.

The real story about the civil justice system isn't an explosion of litigation—as this DOJ study and countless others prove—it's that the civil justice system remains the last line of defense for ordinary American families against corporate CEOs who put their bottom line before the safety of their own customers and all Americans.

*Ken Suggs, president of the American Association for Justice, is a partner in the Columbia, SC, law firm of Janet, Jenner & Suggs.