“We the Plaintiffs”: Tort Reform Misinformation, Now In Handy Infographic Form

After this post went live and the Center for Justice & Democracy weighed in, eLocalLawyers, which apparently created the misleading infographic, removed it from its website.

We The Plaintiffs Infographic

A new infographic titled “We The Plaintiffs” is popping up around the Internet. Calling itself “A Closer Look at America's Obsession with Lawsuits,” the chart could more accurately be described as the distilled essence of the tort reform movement's difficult relationship with the truth. As with so much of the tort reform disinformation common in the media, it deploys misleading statistics and deceptive anecdotes to paint a distorted portrait of a nation in which rogue plaintiffs run wild. An exhaustive debunking of “We the Plaintiffs” by the Center for Justice & Democracy demonstrates that a chart accurately reflecting the current state the justice system might better be titled “We The Corporations.” 

The “We The Plaintiffs” chart has already made its way from the blog of the pro-tort reform organization Common Good to the legal gossip blog “Above the Law,” and seems destined, like so many collections of urban legends on this topic, to be periodically recycled by tort reform supporters. “We The Plaintiffs” gets many things large and small wrong. Below are three big ones.

Debt collection by banks and other businesses accounts for much of the total number of lawsuits.

The picture “We the Plaintiffs” attempts to paint of what it calls a "sue-happy nation" (emphasis in original) is contradicted by data on who actually files lawsuits. According to the National Center for State Courts, personal injury and other tort cases account for only five percent of new cases, with debt collection and other suits based on contracts accounting for 70 percent of caseloads. A closer look at caseloads in Kansas, a state that closely tracks data on the kinds of cases in its court system, shows that, in 2009, 80 percent of new cases were contract disputes, and 75 percent of those were debt collections.

The chart's estimate of costs is wildly overinclusive, and pulls in costs having nothing to do with lawsuits.

The infographic includes a graph which claims that, in 2003, $251 billion, or 2.2 percent of GDP, “went to tort costs.” According to the Center for Justice & Democracy, the data underlying the study cited by the infographic “actually have no connection whatsoever to the costs of lawsuits, litigation or the courts.” The study, by insurance industry consulting firm Towers Watson, actually looked at all payouts on insurance claims (such as routine “fender bender” auto accidents), even if no lawsuit was filed, and also includes the insurance industry's administrative overhead, including salaries, executive bonuses, advertising, rent and commissions paid to agents.

The chart plays up “frivolous” lawsuits and the costs associated with them, even though four of the five cases cited were dismissed.

In the American legal system, judges have the power to dismiss cases that they believe to be without merit, and even punish lawyers who bring frivolous suits. “We The Plaintiffs” cites five cases as evidence of frivolous lawsuits, but acknowledges that three of them were “dismissed,” “rejected,” or “unsuccessful,” and one even “never made it to court.” The chart is thus arguing with itself, by presenting evidence that the system worked in support of its claim that the system somehow isn't working.