Characteristics of the Tort System Today

Getting a complete picture of the state of the U.S. tort system is difficult because no data are available that cover all of the tort cases brought in the various jurisdictions across the country. However, the National Center for State Courts (NCSC) provides some data on trends in civil filings in general-jurisdiction courts in several states.11 It also conducts periodic surveys of civil trials in the nation’s 75 largest counties for the Bureau of Justice Statistics (BJS). In addition, data about cases disposed of in federal court are available from the Administrative Office of the U.S. Courts.

In 16 states consistently tracked by the NCSC, tort filings in general-jurisdiction courts grew from 189,520 in 1975 to 260,745 in 2000, which appears to support the common view that the number of tort cases is rising. But controlling for population growth in those states indicates that tort filings relative to population declined by 8 percent over that period—from 230 per 100,000 residents in 1975 to 212 in 2000.12 Additionally, total tort filings in those 16 states were relatively constant from 1986 to 1996 and have shown a downward trend since then, falling from 320,976 filings in 1996 to 260,745 in 2000.

In drawing inferences about the tort system as a whole, however, it is important to note several limitations of the available information.

  • Data do not exist for those tort disputes that do not go to trial, because the details of settlements are usually private.13
  • Collecting consistent data between the various jurisdictions is difficult. The overwhelming majority of tort filings occur at the state level, and the structure of state courts and the laws under which they operate differ from state to state. Moreover, those courts have not tended to view keeping records on the details of case outcomes as being central to their mission.
  • Both anecdotal and statistical evidence about damage awards can be misleading because the amount of damages actually paid can be reduced after a trial.14
  • Overall trends can be misleading because various categories of torts have different economic impacts, and the timing and disposition of mass torts (cases involving large numbers of people) can significantly skew the numbers.

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11. Although all states have at least one court of general jurisdiction, 44 states have limited-jurisdiction courts that hear certain types of cases, such as small claims, traffic, or probate cases. See Neal Kauder, Examining the Work of State Courts, vol. 1, no.1 (Williamsburg, Va.: National Center for State Courts, August 1995).

12. Data for the early years of that period may not be complete, but that would only sharpen the finding of a decline. See Brian J. Ostrom, Neal B. Kauder, and Robert C. LaFountain, eds., Examining the Work of State Courts, 2001: A National Perspective from the Court Statistics Project (Williamsburg, Va.: National Center for State Courts, 2001), with accompanying spreadsheets available at

13. The NCSC data are limited to the number of court filings; they do not give details about cases. They also cover only a subset of states. Another possible source of data on the outcomes of tort cases is insurance company records—since a large percentage of tort awards are paid by defendants’ insurers—but companies do not regularly make those records available.

14. Many, if not most, court awards are negotiated among the parties after trial, are reduced by the judge, or are subject to statutory reductions, such as caps on damages. For example, in the widely reported case involving a person scalded by a cup of McDonald’s coffee, the trial court reduced the plaintiff’s $2.7 million punitive damage award to $480,000 (three times the compensatory damages).