In the age of artificial intelligence (and statistics before that), there is a great need for these frameworks’ constant companion – data. After centuries of common law tort actions, and millions of lawsuits filed, one might think that much would be known about these suits. Not so. As James Anderson and co-authors from the Rand Institute for Civil Justice write, “Remarkably, there is little recent empirical research in the United States that measures the extent and sources of compensation, benefits, and assistance that individuals may receive after they suffer personal harms.” (Pp. 97-98.) Tort law counts among these empirically-neglected sources.
Anderson and the current RAND crew set out to fill this information gap. In tribute to Stanford Law School Professor Deborah Hensler and her pioneering empirical work on civil justice claims, the authors surveyed 17,000+ adult Americans about injuries, illness, and the ways in which losses from these difficulties were addressed. Using a standard that measured respondents’ lost days of work, inability to perform regular activities, multiple visits to a healthcare provider, nights in the hospital and visits to the emergency room, the researchers winnowed the group down to roughly 3,000 people who had suffered “significant injury or illness” under the study criteria in 2017. (P. 98.) Those 3000 people were asked to provide detailed information about the extent and manner of their injuries or illness; the harms, treatments, and expenses they endured; the sources of compensation they relied on; their views about attribution of blame; and their decisions to consult a lawyer, initiate suit, and pursue a claim. About two years after these first inquiries, the researchers sent follow up questions to learn more.
The authors’ findings provide an important source of data that will likely be relied on for years to come (unfortunately, as the authors note, “empirical methods are still more the exception than the rule” in this field). (P. 115.) Some headline findings of the research: Nearly 20% of Americans experience significant injury or illness, as defined by the authors, in a given year. However, only a tiny fraction of those harms results in litigation. About one quarter of individuals who suffer significant injury or illness attribute blame to another (26.1%). (P. 97.) Of the small fraction who thought another was at fault, less than a third (7.1%) chose to seek compensation from that entity (or person). Few of those who sought redress contacted an attorney, somewhat fewer hired an attorney, and fewer still filed a lawsuit. Ultimately, just 2.1% of the people who suffered significant injury or illness filed suit.
The primary rationale for the small percentage of people who claim is that “few who are injured or fall ill believe another party is responsible.” (P. 97.) Even when others were believed to have been responsible, many declined to seek compensation because it seemed like it was “not the right thing to do,” was not necessary in light of other sources of compensation, or “would not be worth it” on an informal cost-benefit calculation. (P. 102.)
The characteristics of those who sought legal assistance and compensation held some surprises. For example, the authors found “no correlation between income and contacting or hiring an attorney.” (P. 102.) Moreover, in pursuit of legal representation, 53% of all prospective plaintiffs were turned away by an attorney, usually because of the cost of suit and the low likelihood of recovery. This rate of attorneys denying representation was more than double the rate in Professor Hensler’s original research thirty years earlier. (P. 101.) However, about three quarters of those who contacted an attorney ultimately did file suit. (Some respondents had to contact multiple attorneys to find one willing to take the case.) (P. 102.)
Other findings seem more expected. The most significant factors that led injured or ill people to legal claims were severity of injury, attribution of fault to another, and an injury context in which tort claims already were well established (injuries related to medical services, work, products, and motor vehicles). (P. 101.) Of note, these contexts are ones in which insurance is typically available (cap tip to the Abraham and Sharkey research on the importance of insurance in the growth of tort liability).1 Injured potential claimants’ decision formula for when to seek compensation seems fairly close to Judge Learned Hand’s famed BPL standard. That standard examines severity of injury and cost of avoidance among its three factors. Respondents who had suffered “extremely serious injury or illness,“ and had attributed blame to another, sought compensation in 93% of cases—a percentage that stands in stark contrast to the much lower claim rates of those who described their injuries as less severe. Claimants’ decision formula also accords with civil recourse theory’s focus on wrongs, and the main doctrinal questions in negligence law—is another at fault for causing harm?
If tort law is not invoked by 98% of the people who suffer seriously injury or illness, “How do individuals recover losses associated with injuries and illnesses, if at all?” (P. 97.) Workers compensation plays a role. But oddly, study participants’ reluctance to attribute fault and seek compensation in tort carried over to the workers compensation context as well (if to a lesser extent). “[O]nly 29% of those who were injured or became ill on the job filed workers compensation claims.” (P. 103). The most common reason people gave for not filing workers compensation claims was that the injury “wasn’t anyone’s fault,” even though workers compensation is a no-fault system. (P. 103.) Medical insurance was one of the most widely-used sources of compensation, and its use has increased over the last three decades, likely because of the Affordable Care Act. (P. 103.) Paid vacation and sick days were also a popular option for dealing with injuries. (P. 103.)
The question of exactly what should be done about tort law in light of these findings remains hazy. The RAND authors conclude that “the civil justice system makes a terrible social welfare insurance system simply because it compensates such a tiny fraction of the universe of individuals that are injured or ill.” (P. 104.) Moreover, the authors conclude that tort law is not a full substitute for regulation of risky activity, because it is invoked in such a small fraction of cases. (P. 110.) These conclusions seem both true and uncontroversial, at least in their strong form. Few, if any, U.S. torts scholars would claim that tort law is intended to act as a general social welfare system, or that its deterrent effects should serve as a full replacement for regulation.
Study authors appear to suggest that tort law must have a larger footprint to be of any value. They bemoan the “partly chimerical right of civil recourse.” (P. 109.) They decry the idea that tort law can be a meaningful source of loss spreading. (P. 107.) Whether or not one agrees with these claims (2 percent of tens of millions of significant harms, especially the most significant harms, seems a decent sized footprint), the implication of the RAND authors’ work is that too few lawsuits are being pursued. (P. 115.) Go tell that to businesses and legislatures!
Of course, it is crucial to have systems that care for the many people impacted by injury and illness—medical insurance, sick days, workers comp, and social security disability among these. This vital safety net can lessen the weight of costs that an injured or ill person must individually bear. At the same time, the civil justice system, though less frequently deployed, may yet play a meaningful role. By addressing those cases in which wrongful conduct causes severe injury in contexts of repeated harm (where tracts of liability have already been cultivated), tort law can not only aid the most injured claimants, but also potentially reduce the large number of injuries and illness caused to others. To gauge not just the potential, but also the actual, accountability and deterrence created by the tort system, perhaps these skilled authors could, in their next study, survey repeat injurers about how much time and money they spend worrying about, and reshaping conduct in light of, the various compensation systems. It would be interesting to see if efforts to reduce workers compensation premiums and reduce sick time command the same concern, attention, and resources that lawsuits, and potential suits, in the civil justice system demand.
- Kenneth S. Abraham and Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L. J. 2165 (2024).
