RAND Review
Special Section
Trials and Tribulations
Expert Witnesses Chart the Future of American Civil Justice
By Robert T. Reville
Robert T. Reville is director of the RAND Institute for Civil Justice.
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Contents of This Section:
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For 25 years, the RAND Institute for Civil Justice (ICJ) has filled a critical need. The institute was founded in 1979 in response to two circumstances: (1) the growth of mass tort litigation targeted at the manufacturers of medical devices and pregnancy-related medications, which raised concerns about the availability of liability insurance and led to calls for tort reform; and (2) the absence of any single university or think tank in the United States with a body of knowledge on civil justice policy and operations. Policymakers were facing a mounting crisis in the civil justice system but were operating in a virtual vacuum of reliable information.
Although we have managed to aggravate some of our financial supporters, [they] usually come back to us because they know we call like it is. |
The Property-Casualty Insurance Council of the United States put up initial funding for an independent research institute within RAND dedicated to analysis of the civil justice system. Under the leader-ship of Gus Schubert, the new institute quickly obtained additional funding from plaintiff and defense attorneys, corporations, and trade and professional associations — parties with divergent interests to protect. And thus a unique institution — the only private, nonpartisan legal policy research institute in the United States, with a governing board that included many of the most distinguished leaders in the civil justice system and that represented competing interests — was born.
The Hampshire County Courthouse, shown in July 2004, was built in Romney, W.V., in 1922 to replace the original 1833 building. The three-story structure was built in the Neoclassical Revival style that was popular in the early 20th century. |
In this issue of RAND Review, we commemorate our achievements over the past quarter century in helping to make the civil justice system more efficient and more equitable, particularly in compiling essential data on an extra-ordinarily complex system and in acting as a neutral observer of civil justice trends. Moreover, we take this opportunity to discuss some of the critical civil justice issues facing us in the next decade and, when possible, to propose ways to grapple with these issues.
Pioneering Data
The ICJ has made a key contribution as a provider of empirical data on an overwhelmingly complex system. The “system” is really a collection of countless private disputes resolved in and out of a decentralized court system spread across the country. Collecting data on such a system is daunting, but the ICJ has risen to the challenge and conducted numerous studies, many of which remain the reference standards to this day. Among these pioneering studies are the following:
- trends in jury verdicts, originally using data from only Cook County, Illinois, and California in the 1980s but ultimately collecting and analyzing data from across the country (with 40 years of trend data from the original jurisdictions)
- the first studies of asbestos litigation, providing empirical data in 1983 on what was then an emerging mass tort — and establishing the ICJ as the preeminent source of information on a civil justice issue that has recently emerged as a focus of considerable controversy once again
- the only comprehensive household survey of accidental injury compensation in the United States, producing breakthroughs in our understanding in 1991 of issues ranging from the costs of accidents in America to the litigiousness of Americans
- the transaction costs of litigation in the United States, providing data on the fraction of system costs received by claimants (a 1986 study that continues to be cited today).
Neutral Observer
The ICJ has made another key contribution by conducting objective research on an institution that is inherently based upon competing positions of advocacy, both in the courtroom and in public policy debates. Strict adherence to RAND’s quality control standards and to the input and oversight of our board have helped to create a body of research that is widely regarded as the only nonpartisan voice in these debates. The following are recent examples:
- our 2002 asbestos study, which was cited in congressional debates by senators of both parties and was also cited in both majority and dissenting opinions of a recent U.S. Supreme Court case
- our 2004 workers’ compensation study, which was cited in California Senate testimony by both labor and business interests. Our recommendations were incorporated into the recent California reform legislation (SB 899). As a result, the new law makes California the first state to base the assignment of disability benefits on empirical evidence about the earnings losses attributable to different impairments.
California Senate Minority Leader Jim Brulte, R-Rancho Cucamonga, and State Senate President Pro Tem John Burton, D-San Francisco, confer during the discussion of a workers’ compensation reform bill at the state capitol in Sacramento on April 16. The Senate approved the measure 33–3, sending the bill to the governor for approval. |
We serve policy precisely by maintaining the role of neutral observer. Although we have managed to aggravate some of our financial supporters, who are not always satisfied with the results of our studies, these same supporters usually come back to us because they know we call it like it is. Our objectivity provides a basis from which opposing parties can accommodate one another’s views and resolve policy disputes.
Looking to the Future
Today, there is once again considerable concern over the state of civil justice in the United States. In the past 25 years, the civil justice system has grown increasingly complex, in part because of the growing complexity of the world in which we live and hence of the legal system undergirding that world.
We asked a number of our researchers and board members each to comment on an issue he or she feels strongly about, one that is likely to require a policy response in the future. The essays in the following pages reflect both the growing complexity of the world and the continuing responses of the courts:
- An increasing reliance on settlements, together with mediation and arbitration, has led to a decreasing reliance on trials to resolve disputes and an unintended threat to our core notions of justice itself (Judge Patrick Higginbotham).
- Technology has increased the burden placed on the courts by technology-driven evidence (Roberta Katz).
- Globalization has led to the worldwide adoption of American-style mass torts (Deborah Hensler) and to the arrival of catastrophic terrorism in our country, with accompanying challenges to our compensation system (Kenneth Feinberg).
- Widespread concerns about medical malpractice and product safety have greatly complicated the problem of compensating individuals for medical injuries (David Studdert and Steven Garber).
- Recent corporate scandals in the United States have exemplified the growing role of securities fraud litigation (Eric Talley).
In conclusion, given the increasing legal complexity of various aspects of our daily lives, Robert Peck argues that a neutral voice, providing unbiased empirical data to improve civil justice policy, may be needed more than ever. 
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