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Decline in Number of Federal Trials Not Significant

The Washington Post has reported on a DOJ study that shows that the number of tort cases going to trial in federal court has declined over the past several decades.

The articles notes that there were 768 tort trials in federal court in 2003 down from 3,604 in 1985. The article does not comment on the number of cases filed, noting only that the average was 44,770 per year over the 33 years in the study and that there were 49,166 cases filed in 2003.

Unfortunately, these statistics really do little to describe the state of play in federal tort litigation.

The 2003 statistics indicate that, of the 49,166 cases filed, there were 768 trials, amounting to a 98.5% rate at which cases are disposed of before trial. Using the 1985 trials number (3,604) in comparison to the average number of cases filed over the period (44,770) yields a disposition rate of 92%.

While it's clear that very few cases go to trial, and the article speculates this is because so many cases "settle", the statistics do not necessarily support that conclusion or tell us anything about the settlements. We can't tell, from the article at least, whether the trial rate is affected by the settlement rate or by the number of cases dismissed on summary judgment or preliminary motions.

Even more important, however, is the fact that federal tort litigation amounts to less than 10% of all tort litigation country-wide. More than 90% of all these cases get filed in state courts.

The reason these statistics are important is because some media outlets (and some disingenuous advocacy groups) often try to draw conclusions from them. I would not be surprised, for example, to see an article or newspaper editorial in the next few days suggesting that the decline in cases going to trial suggests a decline in frivolous litigation or the lack of a need for tort reform.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.