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WHERE HAVE ALL THE CASES GONE? THE STRANGE SUCCESS OF TORT REFORM REVISITED [Dagger]

2016; The MIT Press; Volume: 65; Issue: 6 Linguagem: Inglês

0094-4076

Stephen Daniels, Joanne Martin,

Dispute Resolution and Class Actions

INTRODUCTIONUnless there's a way to make money practicing law, rights don't make any difference.1 This is what a Texas plaintiffs' lawyer told us in describing the consequences of tort reform's impact on his practice.2 Just over a decade ago we published an article in the Emory Law Journal titled The Strange Success of Tort Reform.3 A part of the 2004 Thrower Symposium that focused on tort reform, the article was driven by our interest in the possible connection between tort reform and the declining number and rate (per 1000 population) of tort cases.4 It took an unusual tack for a law school symposium and argued that tort reform could succeed even in the absence of much formal change in the law5-formal changes in the law being the more typical focus for law school symposia. Tort reform could do so, we said, through sophisticated and aggressive public relations efforts and political campaigns aimed at reshaping the market environment in which plaintiffs' lawyers work.6 This reshaping, in turn, would make it much harder for the practices of these lawyers to remain profitable.7 Market reshaping and profitability become important because these lawyers are the gatekeepers of the civil justice system.8 They provide meaningful access to the rights and remedies the law offers.9 In other words, they close the gates to the courthouse by focusing tort reform activity on the gatekeepers.In retrospect, that success may not be all that strange. It can be seen as a part of what some may see as a broader, long-term on civil justice. This is consistent with an even broader, conservative political movement and its interest in reshaping the law to serve its interests.10 Relatedly, since the early 2000s there has been considerable distress about the apparent demise of the civil jury trial as perhaps the key form of court-centered litigation.11 We want to revisit our earlier argument about tort reform's success in light of more recent patterns and changes in tort cases and the contemporary concerns about the declining incidence of court-centered litigation-especially with regard to civil jury trials.12 And, we want to do so in the context of the research we have done since that earlier article. As will become clear, we agree-to an extent- with those skeptical of the recent concern over jury trials and the consequences of their apparent demise. At least in terms of auto accident cases-the most prevalent kind of tort case, accounting for a large proportion of jury trials13-it does not appear that juries are vanishing, although it might be that the cases themselves may have at certain points in time.14 We are not, however, skeptical about the war on civil justice itself and its possible success. We think the important question is more about whether cases continue to come into the civil justice system rather than just how they leave it. In other words, it is more a question about tort reform's impact on the front end rather than on the back.Our 2004 Emory Law Journal article focused on Texas, where we have been doing research related to civil justice for many years and continue to do so. Texas is our laboratory and our focus here.15 For this Article we are interested in what has happened more recently with regard to tort cases and dispositions, especially trials. The 2004 article explored changes in tort litigation rates and dispositions-specifically auto accident cases-in light of the ways in which plaintiffs' lawyers altered their practices based on their perceptions of the tort reformers' public relations and political campaigns.16 Those alterations ranged from leaving the practice area altogether to taking fewer auto cases, to screening cases more stringently, and even to turning away certain kinds of clients they would have taken previously (clients with good cases).17Here we reexamine those issues with updated data on tort cases, dispositions, and on plaintiffs' lawyers collected after the 2004 article. …