Proof of the Litigation Explosion

Lester Brickman writes a guest blog for the TortsLawProf on the stealth litigation explosion in this country. Even though tort cases only make up 5% to 10% of the filed lawsuits in this country, Professor Brickman argues this number is artificially low because of class actions and cases filed with more than one Plaintiff.

Many things are left unexplained. Haven’t cases always been counted like this? How is this evidence of an explosion? Aren’t there zillions of consumer class actions that also mask the number of non-tort plaintiffs?complaint1

Moreover, the whole idea that “it is more than you think” tells us nothing. So how many claims are there if claims are not properly estimated. And, again, why is this evidence of an explosion?

The only meaningful data provided to show a national litigation explosion is the number of claims that have been filed against New York City (not in, just against) between 1984 and 2004. Sure, payout rose in claims against the city. But quoting data from six years ago covering a 20 year period showing a rise in payouts (that, parenthetically, approximates the rising cost of health care during a 20 year period where that city came back from the abyss, ergo more activity in the city) against one municipality just does not tell us anything. At all.

I don’t have feelings set in concrete on whether there has been a “litigation explosion” in this country. I could be swayed with the right evidence. But the lack of substance of this blog does not strengthen the case for a litigation explosion. In fact, it does the exact opposite.

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