RAND Review

Special Section

A Time for Facts,
Not Overblown Anecdotes

By Robert S. Peck

Robert S. Peck, president of the Center for Constitutional Litigation, is a member of the board of overseers of the RAND Institute for Civil Justice.

Contents of This Section:

The Cardiff Giant was once called America’s greatest hoax. The elaborately concocted 19th-century fraud involved a 10-foot, 3,000-pound stone sculpture of a man passed off as a petrified giant from an earlier age. Even after its true origin became known, large paying audiences continued to flock to it. P. T. Barnum, the self-titled “Prince of Humbug,” attempted to purchase the giant for his circus, offering the then-incredible sum of $60,000. When his offer was spurned, he had a wooden duplicate carved. In December 1869, the original giant and Barnum’s wooden copy competed for customers in New York City, two blocks away from each other. Perhaps owing to Barnum’s showmanship, the ersatz version outdrew the original.

Most criticism of excessive jury awards ignores the fact that the liability system already has mechanisms for reducing such awards.

Like an audience that wants to believe the unbelievable, policymakers and the public have jumped into the tort-reform debate with little understanding of the true state and nature of the civil justice system. Treated to well-funded advocacy built around outrageous tales of frivolous lawsuits, fractured anecdotes about wealth-redistributing juries, and cartoonish portrayals of legitimate lawsuits, many people have a significantly distorted view of how our courts and juries work. Phrases like “litigation lottery” and “tort taxes” have entered the lexicon of public discourse, despite how distant these terms are from reality. In one comprehensive review of the available empirical data, University of Iowa law professor Michael Saks found the self-styled reformers’ negative characterization of juries and the civil justice system “built of little more than imagination.”

In contrast to the system portrayed as broken in these debates, the civil justice system does a remarkable job of leveling the playing field between those with political influence and wealth and those with no claim to be societal favorites. Of the millions of cases that pass through the system each year, only the smallest handful prove controversial. To be sure, the system is far from perfect, and improvement should always be sought. However, a skewed caricature of the system and wild urban myths about specific lawsuits are not the basis for wise public policy development.

Dan Eife
Dan Eife, center, addresses hundreds of demonstrators and lobbyists who filled the capitol rotunda in Harrisburg, Pa., on March 9, as lawmakers prepared to vote on the issue of whether to limit the dollar amount that juries can award for pain and suffering in civil liability suits. Electrocuted in a 1995 industrial accident, Eife lost both hands and suffered severe damage to one leg.

Instead, two elements, often given short shrift in the debate, deserve greater attention. First, access to justice is an American birthright. With a genealogy that dates at least back to the Magna Carta and confirmed in the U.S. Constitution, the right to one’s day in court and a fair resolution of one’s claims is not “cause for consternation” but, as the U.S. Supreme Court determined in 1985 in Zauderer v. Office of Disciplinary Counsel, “an attribute of our system of justice in which we ought to take pride.” Any new policy choices that are considered must harmonize with the protection of universal access to the courts. Second, the stakes at issue — the preservation of a fair and available civil justice system — demand that policymakers of good will look beyond the rhetoric and examine research that gives a clearer and less-fevered portrayal of the legal landscape. The ICJ’s work on these issues exemplifies the type of reliable data that can serve public policy needs in a way that pure advocacy cannot.

For instance, the ICJ’s work on trends in jury verdicts has shown that jury awards are not rising at staggering rates, but instead tend to increase in line with the rate of inflation and the underlying costs being compensated (increasingly, medical costs). ICJ research has also shown that most criticism of excessive jury awards ignores the fact that the liability system already has mechanisms for reducing such awards. One ICJ study has shown that, on average, jury awards are reduced to 71 percent of the original award through posttrial judicial actions—and that larger awards (over $10 million) are reduced, on average, to 57 percent of the original amount. This kind of empirical data, rather than raw speculation or political warfare, should fuel our determination to make the best civil justice system in the world even better.

With civil justice taking center stage in modern public policy debates, the need for research on how we can guarantee access to justice while maintaining a fair and sensible system is greater than ever. We need data that debunk the fanciful anecdotes and the unrepresentative (and often inaccurate) headlines that too often substitute for hard facts. Not to be lost in the data, though, must be the injured person’s perspective, where the real human dimensions and ramifications of any new policy direction can be understood. Only then — by relying on hard data representative of the experience of real people — will the promise of civil justice be fully realized. square

Related Reading

“Do We Really Know Anything About the Behavior of the Tort Litigation System — and Why Not?” University of Pennsylvania Law Review, Vol. 140, No. 4, April 1992, pp. 1147–1292, Michael J. Saks.
“Forty Years of Jury Verdicts,” Journal of Empirical Legal Studies, Vol. 1, No. 1, March 2004, pp. 1–25, Seth A. Seabury, Nicholas M. Pace, Robert T. Reville.
Posttrial Adjustments to Jury Awards, Michael G. Shanley, Mark A. Peterson, RAND/R-3511-ICJ, 1987, 98 pp., ISBN 0-8330-0874-9.