What are tort awards really like? The untold story from the state courts.

Ostrom, B., Rottman, D., & Hanson, R. (1992). What are tort awards really like? The untold story from the state courts. Law and Policy, 14, 17-101.

The popular press frequently reports exorbitant money damage awards by juries. These stories cause paroxysms in the business community because juries are viewed as favoring plaintiffs over corporations. A growing body of literature has examined aspects of this complex issue, but within a limited framework. Prior studies, which are based on data from the early 1980s or before, tend to focus on federal court cases, primarily product liability and medical malpractice torts, only jury verdicts, and single jurisdictions when state courts are included.

The objective of this article is to contribute to the literature by examining all tort cases reaching either a bench or a jury trial verdict during a sample period in 1989 in twenty-seven general jurisdiction trial courts. Research is organized around three basic questions. What do torts look like? Do particular types of plaintiffs/defendants gain a higher percent of favorable verdicts? When plaintiffs are awarded money damages, what is the importance of litigant status, while controlling for other factors, in influencing the size of the awards?

The article begins by describing the landscape of torts – the typical configurations of the contending litigants, the composition of torts by area of law, the types of trials, verdict patterns, and the average size of awards. Basic contours of the landscape reflect the elemental facts that individuals generally are plaintiffs in these cases and the opposite tendency of corporations, insurance companies, and governments to appear as defendants.

Next a model is outlined and tested to determine how strongly different possible determinants shape the size of tort awards in the twenty-seven state trial courts. Does the size of the award depend on the configuration of the parties after taking into account the type of tort, the type of trial, the length of disposition time, and the state in which the court is located? The results indicate that the group of variables representing the various pairing of litigants accounts for most of the explained variation in award size. These findings support the notion that the status of the litigants is an important factor in influencing awards. Because the variables representing some of the individual states are also significant, the evidence also suggests no single, uniform pattern applies across all the courts. Instead, the state context shapes the basic parameters of plaintiff and defendant success.

Considerable variation in plaintiff success rate by case type (higher for contract-related, lowest for medical malpractice) and litigant status (individual plaintiff vs. individual defendant most frequent). Likelihood of individual plaintiff winning against a business contingent on business type; highest against insurance company, moderate against corporation, lowest against government. Damage awards differed by case type and litigant status as well.