EDITORIAL: The number of civil tort cases is dropping across the country

Back in 2002, George McGovern, a Democrat, and Alan Simpson, a Republican, penned a Wall Street Journal op-ed decrying the U.S. tort system as having become a lucrative “sporting contest” in which businesses and individuals were forced to spend too much time “protecting themselves” from potential legal action.

“When law is not trusted,” they wrote, “people begin to feel uncomfortable in dealing with each other. People stop what’s doing sensible. A healthy system of law should make people comfortable doing what’s right, and nervous about doing what’s wrong. Today, law makes people nervous in doing practically anything.”

Seven years later, columnist George Will echoed a similar theme about Americans being forced to navigate a “legal minefield through which we timidly tiptoe lest we trigger a legal claim. What should be routine daily choices and interactions are fraught with legal risk.”

It may not be apparent from the ubiquitous attorney ads all over the airwaves, but has the tide begun to turn?

The Journal reported this week that according to numbers from the National Center for State Courts, Americans are filing far fewer lawsuits. In 1993, about 10 in 1,000 people went to court on grounds they were harmed in an alleged civil wrong. That number dropped to fewer than 2 in 1,000 in 2015, “a difference of 1.7 million cases nationwide,” the paper noted.

The Journal attributed the decline to “state restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their lawyers.”

Not that attorneys are suddenly having trouble scraping up civil clients. As tort claims have dropped, contract cases — which include “debt collection, foreclosure and landlord-tenant disputes,” according to the Journal — have skyrocketed, and now make up more than half of a typical court’s civil docket.

In fact, the drop in civil tort actions may be somewhat misleading if more and more potential plaintiffs are simply settling quickly rather than heading to court. Increased use of arbitration to control costs could also be a factor. A 2008 study in the Journal of Empirical Legal Studies concluded that civil plaintiffs often lose out when they go to trial. That reality may be influencing the number of cases filed.

“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,” Randall L. Kiser, a co-author of the study, told The New York Times.

Some estimates put the cost of U.S. civil litigation at 2 percent of GDP. But while the system can serve as an efficient vehicle to right injustice and hold accountable those individuals or entities that do harm, if attorneys and plaintiffs are becoming more reluctant to litigate every perceived slight, the nation will be better for it.