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1 Another Brick in the Wall : An Empirical Look at Tort Litigation in the 1990's. Thomas A_ Eaton J.Alton Hosch Professor of Law, The University of Georgia Susette M_ Talarico Professor of Political Science and Director of Criminal Justice Studies, The University of Georgia Prepared for The Georgia Civil Justice Foundation January 31, 2000

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3 CONTENTS I Introduction p.l 111. Methodology p.4 A- Site Selection n.4 B. Data Collection p.5 C. The Data Set p.6 0I Filing Patterns n]' A. Number of Tort Claims Filed During l B. Tort Filings as u Percentage of Civil Litigation p.10 C. Tort Population p. 12 D. Conclusions p. 16 IV. Characteristics Claims Filed in Georgia Courts p. 16 A. Type of Claims p Indicators (if Complexity.n20 V. Disposition Patterns p.21 A. Trials p.22 B. Settlements -- n.2l3 C. Other Methods of Disposition Disposition p.24 D. Percentages of Tort Cases Disposed Within One and Two Years of p.20 III. Trial Outcomes p.28 AV Data Set of Cases In Which Outcomes Could Be Determined p.29 B. Trial Outcomes fbr"all Tortsm" p.30

4 C. Variations in Trial Outcomes By Jurisdiction p.31 D. Variations in Trial Outcomes By Type of Claim p.33 VII. Damage Awards p.34 A. Compensatory Damages p Compensatory Damage Awards Generally p Variations in Compensatory Damage Awards By Type of Claim p.38 B. Punitive Damages p.40 VIII. Conclusions : Another Brick in the Wall p.41 A. There Is No Evidence of a "Tort Crisis" in Georgia p.41 B. An Emerging National Picture p.42 FIGURES Figure 1 Aggregate for Tort Filings in Selected Courts p.8 Figure 2A Tort Claims as a Percentage of Civil Filings : Superior Courts p.12 Figure 2B Tort Claims as a Percentage of Civil Filings :State Courts : Cobb and Gwinnett (94-97) ; Fulton (95-97) p.12 Figure 2C Tort Claims as a Percentage of Civil Filings : Cobb, Fulton and Gwinnett : State and Superior Combined p.12 Figure 3 Tort Filings per 100,000 Population p.15 Figure 4A Type of Claim: Aggregate Superior Court Filings p.17 Figure 4B Type of Claim : State Court Filings (does not include Fulton data for 1994) p.18 Figure 4C Type of Claim : Combined State and Superior Court Filings in Cobb, Fulton and Gwinnett Counties p.18

5 Figure 5A Type of Disposition : Superior Courts p26 Figure 5B Type of Disposition : State Courts p.26 Figure 6A Jury Trial Outcomes : Superior Courts p.30 Figure 6B Jury Trial Outcomes : State Courts p.30 Figure 7A Bench Trial Outcomes : Superior Courts p.31 Figure 7B Bench Trial Outcomes : State Courts p.31 Figure 8 Outcome Variations in Superior Court Jury Trials p.31 Figure 9 Outcomes in Jury Trials : Comparison of State and Superior Courts p.33 Figure 10 Summary of Compensatory Damage Awards in Jury Trials p.36 Figure 11 Summary of Compensatory Damage Awards in Bench Trials p.36 Figure 12 Comparison of National and Georgia Median Tort Awards in Jury Trials p. 39

6 TABLES Table 1 IA: Proportion of Torts Cases in General Civil Caseload - Superior Courts : B : Proportion of Tort Cases in General Civil Caseload - State Courts : C : Proportion of Tort Cases in General Civil Caseload - Cobb, Fulton & Gwinnett : D : Comparison of Changes in Filing Rates and Population : Irwin and Oconee : E : Comparison of Changes in Filing Rates and Population : Cobb, Fulton and Gwinnett : F: Ratio of Tort Filings in State Court to Superior Court: Cobb, Fulton & Gwinnett : Table 2 Table 3 2A : Rate of Tort Filings per 100,000 Population - Superior Courts : B : Rate of Tort Filings per 100,000 Population - State Courts : C : Rate of Tort Filings per 100,000 Population - Cobb, Fulton and Gwinnett : A : Type of Tort Claim in Superior Courts : B : Type of Tort Claim in State Courts : C : Type of Tort Claim in Cobb, Fulton & Gwinnett : Table 4 4A : Type of Litigant in Superior Court :

7 4B : Type of Litigant in State Court : C : Number of Litigants in Tort Litigation in Superior Court : D : Number of Litigants in Tort Litigation- State Court : Table 5 5A : Number of Attorneys- Superior Court : B : Number of Attorneys- State Court : Table 6 6A : Type of Disposition- Superior Courts : B : Type of Disposition by Type of Claim - Superior Courts : C : Type of Disposition- State Courts : D : Type of Disposition by Type of Claim - State Courts: E : Type of Disposition by Type of Claim - Superior & State Courts : Table 7 7A : 7B : 7C : Proportion of Cases Disposed within Particular Time Periods : Superior Courts Proportion of Cases Disposed within Particular Time Periods : State Courts Proportion of Cases Disposed within Particular Time Periods : Cobb, Fulton & Gwinnett Table 8 8A : Proportion and Outcome of Jury Trials - Superior Courts : B : Outcome of Jury Trials by Type of Claim - Superior Courts : C : Proportion and Outcome of Jury Trials - State Courts : D : Outcome of Jury Trials by Type of Claim - State Courts : E : Outcome of Jury Trials by Type of Claim - Superior & State Courts :

8 Table 9 9A: Proportion and Outcome of Bench Trials - Superior Courts : B : Outcome of Bench Trials by Type of Claim - Superior Courts : C : Proportion and Outcome of Bench Trials - State Courts : D: Outcome of Bench Trials by Type of Claim - State Courts : E : Outcome of Bench Trials by Type of Claim - Superior & State Courts : Table 10 1OA : 10B : 1OC : IOD : Compensatory Damages : Superior and State Jury Trials Compensatory Damages by Type of Claim : Superior and State Jury Trials Compensatory Damages : Superior and State Bench Trials Compensatory Damages by Type of Claim : Superior and State Bench Trials Table 11 1 IA : Punitive Damages in Superior Court : B : Punitive Damages in State Court :

9 I. Introduction It has been several years since we prepared our first "Profile of Tort Litigation in Georgia".' Our first study examined data from more than 2,100 tort cases filed in the Superior Courts of Bibb, Gwinnett, Irwin and Oconee counties between 1990 and We also analyzed data collected by the National Center for State Courts on tort cases disposed in Fulton County Superior Court during fiscal year At that time we found that tort claims accounted for a small percentage of total civil filings ; relatively simple automobile accidents made up a large majority of all tort cases filed ; more than two-thirds of all tort cases filed were settled while less than seven percent went to trial ; the average case was disposed in less than two years from the date of filing ; plaintiffs prevailed in slightly more than half the cases that were tried to a jury ; when the plaintiff did prevail, compensatory damages tended to be modest in amount ; and outside of Fulton County, punitive damages were rarely awarded? We concluded our first study with a plea for the state to develop "an ongoing process of data collection and analysis" so that policymakers would have access to the information necessary to evaluate various tort and civil justice reform initiatives_ 3 Although a proposed system of data collection is under active consideration, one is not currently in place.' Yet, 'Thomas A. Eaton and Susette M_ Talarico, A Profile of Tort Litigation in Georgia and Reflections on Tort Reform, 30 Ga. L. Rev. 627 (1996). 21d., at Id., at A special committee of the State Bar issued a report recommending a system of improved data collection Court Filings Committee, Report and Recommendations (May 15, 1998). The system recommended by the Court Filings Committee was based on forms 1

10 political interest 5 in tort reform has not diminished and policymakers want to know whether the profile described in our first study remains accurate. It is against this backdrop that we undertook to update and expand upon our original research. We have updated our study by collecting data from tort cases filed in the Superior Courts of Bibb, Gwinnett, Irwin, and Oconee counties between 1994 and Thus, for these four counties we now have data regarding the filing and disposition of tort cases for an eight year period. We also have collected data from tort cases filed in Cobb and Fulton county Superior to be filled out by attorneys at the time of filing and disposition of cases. Legislation implementing such a system was introduced in the General Assembly in 1999, but was not enacted. This bill was reintroduced in the 2000 General Assembly as Senate Bill 176_ At the time of this writing, no action had been taken. 5A "hot topic" for tort reform in 1999 was so-called Y2K legislation. Both Congress and at least a dozen states passed statutes in 1999 that purport to curtail potential tort suits stemming from the Year 2000 computer bug. See, e.g., Year 2000 Readiness and Responsibility Act, Pub. L. No (106th Cong., 1st Session (1999) ; S.B. 983, 1999 Sess. (Va. 1999) (limiting liability and damages for Year 2000 losses, effective April 7, 1999) ; H.B. 1295, 62nd Leg., st Reg. Sess. (Colo. 1999) (limiting liability for Year 2000 losses and providing one year statute of limitations for civil actions, effective July 1, 1999). For a listing and summary of other state Y2K statutes, see American Tort Reform Association, 1999 State Tort Reform Enactments (Summer 1999). Several states also enacted more general types of tort reform legislation. See, e.g., H.B. 775, 1999 Reg. Sess. (Fla. 1999) (limiting punitive damages, modifying joint and several liability, product liability, vicarious liability, and other tort reforms ; effective Oct. 1, 1999) ; H.B. 74, 54th Leg., 1999 Gen. Sess. (Utah 1999) (clarifying joint and several liability ; effective retroactive to March 3, 1998) ; S.B. 137, 1999 Reg. Sess. (Ala. 1999) (placing legislative caps on punitive damage awards ; effective Aug. 6, 1999). There have been important recent judicial developments as well. Several recent state supreme court decisions have struck down tort reform legislation under the state's constitution. See, e.g., State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St. 3d 451, 715 N.E.2d 1062 (1999) (comprehensive tort reform act violates separation of powers provisions of the Ohio constitution) ; Lakin v. Senco Prods., Inc., 329 Ore. 62, 987 P.2d 463 (1999) (statutory cap on non-economic damages violates plaintiffs constitutional right to jury trial) ; Best v. Taylor Machine Works, 689 N.E.2d 1057, 1104 ( ) (statutory cap on non-economic compensatory damages violates state constitutional provisions pertaining to special legislation, equal protection, due process, separation of powers, right to a jury trial, and right to a remedy). 2

11 Courts between Finally, we have collected data from State Court tort filings in Cobb, Fulton, and Gwinnett counties. This is the first time a study has included State Court filings. The State Court data allow us to make a comparison of tort litigation patterns between State and Superior Courts in the metropolitan Atlanta area and provide a more complete picture of the tort litigation landscape. As described in more detail below, our findings are largely consistent with those from our first study. Perhaps the most striking difference pertains to tort filings in State Courts. There were much greater numbers of tort cases brought in the State Courts we examined than in the Superior Courts. When State Court filings are included, the average number of tort suits filed per 100,000 population is much greater than previously estimated. State Court filings do not, however, substantially alter the overall profile of tort litigation. Tort claims remain a relatively small percentage of total civil filings ; there have not been any large increases in the number of tort filings between ; when adjusted for population changes, the rate of tort filings actually declined slightly ; suits arising from automobile accidents still account for more than sixty percent of all claims filed ; more than 50% of all tort cases are disposed within one year of filing and almost 80% are disposed within two years ; most cases are settled while fewer than 5% go to trial ; plaintiffs prevail in slightly more than half the jury trials (although this varies by location and type of claim) and enjoy an even higher win rate in bench trials ; when the plaintiff does prevail, compensatory damages tend to be modest ; and punitive damage awards are exceedingly rare. 3

12 Our findings are consistent with those of other recent empirical studies. 6 Collectively, this growing body of research indicates that the tort system in operation is much different from the one portrayed in the popular and political rhetoric of tort reform. There is no evidence of an explosion in tort filings and few signs of runaway juries. II. Methodology A. Site Selection Our original study included Bibb, Gwinnett, Irwin and Oconee counties. Our present study includes those counties with Cobb and Fulton counties added to the mix. We collected data from every tort case filed in the Superior Courts of these six counties between 1994 through 6See, e.g., Carol J. DeFrances et al., Bureau of Justice Statistics, Civil Justice Survey of State Courts, 1996 : Civil Trial Cases and Verdicts in Large Counties (1999) [hereinafter cited as DeFrances II] ; Marika F.X. Litras & Carol J. DeFrances, Bureau of Justice Statistics, Federal Justice Statistics Program : Federal Tort Trials and Verdicts, (1999) [hereinafter cited as Litras & DeFrances] (analyzing 3,023 tort jury and bench trials in U.S. district courts during 1996 and 1997) ; Deborah J. Merritt & Kathryn A. Barry, Is the Tort System in Crisis? New Empirical Evidence 60 Ohio St. L. J. 315 (1999) [hereinafter cited as Merritt & Barry] (analyzing civil jury verdicts in one Ohio county for twelve years) ; Samuel R. Gross & Kent D. Syverud, Don't Try : Civil Jury Verdicts in a System Geared to Settlement, 44 U.C.L.A. L. Rev. 1, 5 (1996) [hereinafter cited as Gross & Syverud] (analyzing 882 California civil jury verdicts over two representative years) ; Erik Moller, Trends in Civil Jury Verdicts Since 1985 xiii (RAND 1996) [hereinafter cited as Moller] (analyzing civil jury verdicts in fifteen courts of general jurisdiction in six states between 1985 and 1994) ; Carol J. DeFrances et. al., Bureau of Justice Statistics, Civil Justice Survey of State Courts, 1992 : Civil Jury Cases and Verdicts in Large Counties (1995) [hereinafter cited as DeFrances 1] (random sampling of tort cases disposed in FY 1992 in 45 courts of general jurisdiction in large counties) ; Steven K. Smith et. al., Bureau of Justice Statistics, Civil Justice Survey of State Courts, 1992 : Tort Cases in Large Counties (1995) [hereinafter cited as Smith et. al.] (sampling of tort cases disposed in FY 1992 in courts of general jurisdiction in 45 large counties). 4

13 1997. Additionally, we collected information from tort cases filed in the State Courts of Cobb, Fulton and Gwinnett counties. We originally intended to include Bibb State Court in our study, but the records from that court were damaged by a flood and were not readily accessible. Due to the large number of cases filed annually in Fulton County State Court and the fact that some of the 1994 files were in storage, we limited our data collection there to a three year period, We covered a four year period ( ) for the other State and Superior courts. Although the study sites were not selected in a statistically random fashion, they do reflect different regions and types of communities within the state. Fulton County is the heart of metropolitan Atlanta and accounts for the greatest number of tort filings in the state. Cobb and Gwinnett counties are large suburban communities adjoining Atlanta. These three counties account for more than 51 % of the population of metropolitan Atlanta during the time period of our study.' Bibb County is home to the City of Macon and represents a sizeable urban area in middle Georgia. Irwin is a small, rural community in southwest Georgia, and Oconee is a historically rural county in the northeastern part of the state that is undergoing considerable residential development. Collectively, these six counties offer a good picture of tort litigation in Georgia courts. B. Data Collection 7The United States Bureau of the Census estimated that the population of metropolitan Atlanta in 1996 was 3,541,230. Georgia Statistical Abstract , p. 3 (Selig Center for Economic Growth, University of Georgia 1998). The estimated populations for Cobb, Fulton and Gwinnett counties for 1996 was 551,059, 772,540, and 500,816 respectively. 5

14 Data were collected by law students under the supervision of the two of us. Data collection and verification procedures in research of this nature are time consuming and labor intensive processes. The law students inspected court records of every tort case filed in the State and Superior courts of the six counties during the time period included in this study. Thus, our study is based on a complete set of cases and does not involve sampling. The law students extracted seventeen fields of information and entered them on to a coding instrument we developed. Our coding instrument was designed to be compatible with similar instruments used by the Bureau of Justice Statistics (BJS) and the National Center for State Courts (NCSC) in their national studies. 8 The coding instrument included information regarding the parties, attorneys, type of claims, method and timing of disposition, outcome of bench and jury trials, and damage awards. Information contained in individual coding instruments was used to build a data base. We verified the accuracy of individual computer files with random spot checking. Coding errors were identified and corrected. We then conducted preliminary statistical tests as a second measure of reliability. When necessary, the original court records were reexamined to clarify any ambiguity. A small number of coding errors were identified and corrected. The final data base was then constructed and analyzed_ C. The Data Set 'In fact, our student researchers also collected data for the Bureau of Justice Statistics (BJS) and National Center for State Courts (NCSC) in Fulton County as part of their recent national study of tort litigation in large urban jurisdictions. See DeFrances II, supra note 6. 6

15 Our final data set consists of over 25,000 tort cases filed in the State or Superior Courts of the six counties between Of the total of 25,561 tort cases included in this study, 7,881 were filed in the six Superior Courts and 17,680 were filed in the three State Courts. Bench or jury trials disposed of 984 of these cases. Data were missing as to the outcome of 155 of these trials. We have information regarding the outcome of 829 trials. More specifically, our data set includes outcome information on 141 bench trials and 688 jury trials. Of these bench trials, 119 were conducted in State Courts and 22 were conducted in Superior Courts. Our data also set includes information regarding the outcomes of 449 State Court and 239 Superior Court jury trials. We also have information on 449 damage awards rendered in bench and jury trials. Of these damage awards, 14 were made in bench trials in Superior Courts, 106 were made in Superior Court jury trials, 94 were rendered in State Court bench trials, and 235 were made in State Court jury trials. Although not without its limitations, 9 our data set is one of the most extensive created for any State. It is not based on sampling but on individual inspection of every court filing for the years covered in the study. It also includes both State and Superior Court filings. III. Filing Patterns 9Our sites were not randomly selected and there were a small number of files that were not available or in which some information was not contained. Moreover, some of the data collected required students to exercise an element of judgment. For example, students were asked to identify the primary "type of claim" when the Complaint may have alleged multiple causes of action. Additionally, some law suits might be classified as a "tort" or something else, e.g., breach of contract. Business tort and fraud claims may not be fully represented in our data set. We are confident, however, our data are complete and accurate with regard to physical injury torts. 7

16 Our profile begins with a description of filing patterns. This portion of our study will detail the absolute number of tort filings, tort filings as a percentage of all civil filings, and changes, if any, in these patterns over time and adjusted for changes in population. We will note some differences in filing patterns by jurisdiction (e.g., Cobb or Gwinnett counties) and level of court (e.g., Superior or State). The overall picture, however, is one of stability. By any measure, there does not appear to be any "explosion" in the number or rate of tort filings. A. Number of Tort Claims Filed During There were 1963 tort cases filed in the six Superior Courts included in our study in The number of filings increased slightly each year reaching 2075 tort suits filed in Table I A. A far greater number of tort cases were filed in three State Courts included in our study. In 1995, there were 5226 tort claims filed in the State Courts of Cobb, Fulton and Gwinnett counties. The number of tort filings in those State Courts also rose slightly reaching 5317 filings in Table 1 B. In 1995, there were 6878 of tort filings in the combined Superior and State Courts of Cobb, Fulton and Gwinnett counties. By 1997, the number of tort filings in these courts had increased slightly to Table 1 C. Thus, there was a slight increase in the absolute number of tort filings in both Superior and State Courts during this time period. See Figure All Six Superior Courts Combined Cobb, Fulton and Gwinnett : State Courts Combined Cobb, Fulton and Gwinnett : State &Superior Combined Figure 1 Aggregate Tort Filings in Selected Courts. (Source : Tables IA-C). 8

17 These data prompt two comments. First, far greater numbers of tort cases were filed in the three State Courts we examined than in the six Superior Courts. In fact, in any given year there were more tort cases filed in Fulton County State Court than the combined filings in the six Superior Courts included in this study. Compare Table 1A and 1B. Moreover, there were many more filings in the State Court than in the Superior Court of the same county. In the aggregate, there were 3 tort cases filed in State Court for every 1 filed in the corresponding Superior Court. Table 1F. State Courts are created by the General Assembly pursuant to local legislation. There are currently 66 State Courts in the State of Georgia. All major urban and many smaller counties have state courts. 10 State Court jurisdiction over civil matters is not limited by the amount in controversy," so that the most complex tort cases involving the highest potential awards may be tried in State Court. Given the scope of their jurisdiction and the volume of tort cases they handle, one cannot get a complete picture of tort litigation in Georgia without accounting for State Courts. Yet, most prior studies of Georgia tort litigation, including our own, have relied on data extracted exclusively from Superior Court records.' 2 Clearly, such studies are incomplete and State Courts should be given more attention in the future. Second, although the data reflect slight increases in the number of tort filings in both Superior and State Courts, there are variations among jurisdictions and between courts within a 1 For a complete listing of State Courts, see Judicial Council of Georgia, Administrative Office of the Courts, 1998 Annual Report On The Work Of The Georgia Courts (1998). "O.C.G.A (a)(2). note 6. 12See, e.g., Eaton & Talarico, supra note 1 ; DeFrances II, supra note 6 ; DeFrances I, supra 9

18 jurisdiction. For example, tort filings increased steadily in Gwinnett Superior Court, but declined each year in Fulton Superior Court. Table IA_ One might hypothesize that the decline in Fulton County Superior Court tort filings may have been offset by increases in Fulton County State Court. However, tort filings in Fulton County State Court also declined each of the three years we examined. Table 1B. Thus, while Fulton County remains the jurisdiction with the greatest number of tort suits, the absolute numbers of such cases have declined steadily over the four years we studied. The number of tort suits filed annually in Cobb County Superior Court remained remarkably stable over the four year period, but tort filings increased each year in Cobb County State Court. Compare Table IA with Table 1B. We have characterized the increase in the absolute number of tort filings in Superior and State courts as "slight". We will now put that characterization into perspective by looking first at tort claims as a percentage of total civil litigation and then at filing rates adjusted for population. B. Tort Filings as a Percentage of Civil Litigation While the absolute number of tort filings in Superior Courts increased slightly between 1994 and 1997, the number of total civil filings also increased. Tort cases accounted for a relatively small percentage of total civil filings in each of the Superior Courts we examined. In the aggregate, tort claims constituted 5.1 % of the civil filings in the six Superior Courts studied over the four year period. Table IA. Our previous study reported tort cases were 4.9% of civil filings between 1990 and 1993_ The difference between the 5.1% figure reported here and the 4.9% figure from our previous study is due to our inclusion of Fulton County where, as noted 1 0

19 below, tort claims account for a higher percentage of civil filings in Superior Court. One of the most striking feature of the two studies is the remarkable stability in tort filings over an eight year period of time. There were, of course, some variations among jurisdictions. Tort cases accounted for a higher percentage of civil filings in Fulton (6.4%) and Bibb (6_3%) counties than in Cobb (3.6%) or Gwinnett (4.1%) counties. Table 1A. Tort filings in State Courts also appear quite stable. We have complete information on the combined tort filings in Cobb, Fulton, and Gwinnett State Courts for For this three year period, tort cases accounted for 7.2% of all civil filings with little change from year to year. Table 1B. Not surprisingly, tort claims constitute a higher percentage of the State Court civil docket as compared to that of the Superior Court because of the large number of domestic relations matters that must be brought in Superior Court." While the filing patterns in State Courts in the aggregate appear quite stable, there were local variations. Tort cases accounted for 12.8% of civil filings in Gwinnett State Court, but only 4.9% of civil filings in Cobb State Court during the same four year period. Table 1B. Perhaps the most complete picture of tort cases as percentage of civil filings can be gleaned from the combined State and Superior Court filings. We have such data for a three year period in Cobb, Fulton and Gwinnett counties. In the aggregate, tort cases account for 6.5% of the civil filings in the State and Superior courts of those three counties from 1995 through Table 1C. 13Superior Courts have exclusive jurisdiction of divorce proceedings. Ga. Const., Art. VI, IV, 1 1. More than twice as many domestic relations cases were filed in Superior Courts in 1997 than all other types of civil actions combined. Judicial Council of Georgia, Administrative Office of the Courts, 1998 Annual Report On The Work Of The Georgia Courts 21 (1998). 1 1

20 The percentage of tort claims in the overall civil docket of the six Superior Courts, three State Courts, and the combined State and Superior Courts is reflected in Figures 2A-C. 94.9%4W5.1% 92.8% 93.5% Tort Filings Other Civil Filings Figure 2A Tort Claims as a Percentage of Civil Filings : Superior Courts (Source : Table I A). Tort Filings Other Civil Filings Figure 2B Tort Claims as a Percentage of Civil Filings : State Courts : Cobb & Gwinnett (94-97) ; Fulton (95-97). (Source : Table I B). Tort Filings Other Civil Filings Figure 2C Tort Claims as a Percentage of Civil Filings : Cobb, Fulton & Gwinnett : State & Superior Combined. (Source :Table 1 C). C. Tort Filings Adjusted for Population As noted previously, the absolute number of tort filings increased slightly between 1994 and The population in each county included in our study also increased during this time period. The population of Irwin and Oconee counties increased at a much faster rate than the rate of tort filings in each of the four years included in our study. The population in Irwin County grew by 4.5% between 1994 and 1997, while the number of tort filings grew by only 1.3%. Table I D. In Oconee County the number of tort filings increased by 3.5%, as compared to a 14% increase in population. Table 1 D. The same pattern emerges from the metropolitan Atlanta data. There were 202 more tort filings in the combined State and Superior Courts of Cobb, Fulton and Gwinnett counties in 1997 as compared to Table 1 C. The combined 1 2

21 population of these three counties grew by 90,920 during this time period. 14 In each county individually, the percentage increase in population growth greatly exceeded the percentage increase in tort filings in each of the three years for which we have complete State and Superior Court data. Table 1E. For these three counties combined, the population grew by 5.4% between 1995 and 1997, while the percentage increase in the number of tort filings was a barely perceptible.1 %. Table 1E. A common measure of comparative litigation rates is the number of filings per 100,000 population." As Irwin and Oconee counties do not have State Courts, all tort claims in these jurisdictions are filed in Superior Courts. Over an eight year period, the number of tort suits filed per 100,000 population in these counties declined slightly. In our previous study, we reported that between 1990 and 1993 an average of tort cases were filed per 100,000 population in Irwin county. The corresponding figure for Oconee county was tort filings per 100, Between 1994 and 1997 the average number of tort filings per 100,000 population in Irwin (134.1) and Oconee (148.4) counties had actually declined. Table 2A. The picture in Cobb, Fulton and Gwinnett counties is somewhat more complex, but the data also reveal a slight decline in filing rates adjusted for population. As previously noted, a far greater number of tort suits are filed in the State Courts of these counties than in their respective Superior Courts. Previous estimates of Georgia tort filing rates per 100,000 population, 14Georgia Statistical Abstract , p. 3 (Selig Center for Economic Growth, University of Georgia 1998). "See, e.g., Eaton & Talarico, supra note 1, at 645 ; Smith, supra note 6, at 7. 16Eaton & Talarico, supra note 1, at

22 including our own, were based exclusively on filings in Superior Courts.' This methodology has led to a serious underestimation of tort filing rates per population. The Bureau of Justice Statistics and the National Center for State Courts estimated a filing rate in Fulton County in 1992 of 221 per 100, When State and Superior court filings are combined, the actual filing rate is much larger. For example, we calculate an average estimated tort filing rate of per 100,000 in Fulton County between Table 2C. A more accurate picture of tort filings adjusted for population in Cobb, Fulton and Gwinnett counties is found in Table 2C. Filing rates per 100,000 population varied among these counties over the three year period. Filing rates per 100,000 population increased between 1995 and 1997 in both Cobb and Gwinnett counties, but declined each year in Fulton county. Table 2C. In the aggregate, however, the tort filings per 100,000 in these three counties actually declined slightly from per 100,000 in 1995 to 399 per 100,000 in Table 2C. These data prompt three observations. First, an accurate assessment of tort filing rates must include State Court data where applicable.- The failure to include State Court filings in previous studies has produced a large under-estimation of filing rates in metropolitan Atlanta. Second, the increase in filing rates per 100,000 in Cobb and Gwinnett counties coupled with the decline in Fulton County may signal a shift in forums. We have no way of ascertaining the cause of this shift. Perhaps plaintiffs' counsel are more comfortable today than in the past in filing in these suburban counties. Perhaps corporations are relocating their registered agents to move 'See note 15, supra. "Smith, supra note 6, at 7. We calculated an average of tort claims filed per 100,000 population in Fulton County Superior Court between 1994 and Table 2A. 1 4

23 venue out of Fulton County.'`' At this point, we can only identify an apparent shift in the location of tort litigation but cannot explain why it is occurring. Our third observation is perhaps the most important with regard to understanding current tort filing patterns. The data do not reveal any real increases in filing rates. The slight increases in the absolute number of tort filings are more than offset by increases in population. In both the rural counties (Irwin and Oconee) and metropolitan Atlanta (Cobb, Fulton and Gwinnett counties), the number of tort filings per 100,000 declined slightly during the period of this study. Although the absence of State Court data make us cautious about making broad generalizations regarding filing patterns in Bibb County, there is also no indication of an increase in tort filing rates in Bibb County Superior Court. Table 2A. 20 The rate of tort filings per 100,000 population for Irwin, Oconee and Cobb-Fulton- Gwinnett counties over time is depicted in Figure Irwin Superior Court Oconee Superior Court Cobb, Fulton & Gwinnett: State & Superior Co Figure 3 Tort Filings per 100,000 Population. (Source : Tables 2A-C). 19 1n Georgia, a corporation may be sued in the county where it maintains its registered office or in the county where the cause of action originated, provided that the corporation has an office and does business in that county. O.C.G.A (1999). 20 Filing rates per 100,000 population in Bibb County Superior Court have varied considerably over the eight year period between 1990 and The filing rate per 100,000 population ranged from a low of in 1990 to a high of in Eaton & Talarico, supra note 1, at 701 (Table 6). The average Bibb County Superior Court filing rate adjusted for population between 1993 and 1997 is 153. Table 2A. Thus, our current data do not reflect any increase in filing rates in Bibb County Superior Court between our first and current study. 1 5

24 D. Conclusions Whether viewed in terms of absolute number of filings, as a percentage of total civil filings or adjusted for population, the pattern of tort filings in Georgia has not changed much during the 1990's. Modest growth in the aggregate number of tort filings is more than offset by increases in population, and tort claims as a percentage of civil filings have remained remarkably stable over time. Tort filings in the State Courts of Cobb, Fulton and Gwinnett counties vastly outnumber those filed in the corresponding Superior Courts. Filing rates per 100,000 population in metropolitan Atlanta are much higher than previously estimated when State Court filings are considered. But the inclusion of State Court data does not alter the general picture. Adjusted for population, the rate of filing tort claims in the aggregate actually declined slightly between 1993 and This pattern was not uniform, however. Filing rates adjusted for population declined in Fulton County but increased in Cobb and Gwinnett counties. These changes suggest a shift in the location of tort litigation in metropolitan Atlanta. N. Characteristics of Tort Claims Filed in Georgia Courts The term "tort" covers a wide variety of claims. In this part of our Report, we identify the characteristics of tort claims filed in Georgia courts. We first describe the type of claims filed. We then look at rough indicators of complexity, such as the number and type of parties and number of attorneys. The dominant pattern reflected in the filings is one of relatively simple cases. 1 6

25 A. Type of Claims High states products liability and medical malpractice suits receive more media and academic attention, but the every day world of tort litigation is dominated by the automobile accident.`' We found this to be true in our 1996 study and it remains true today. The percentages of various types of tort claims in Superior Courts, State Courts, and the combined Superior and State Courts are reported in Tables 3A-3C. Suits pertaining to automobile accidents accounted for 55.8% of all tort claims filed in the six 55.9% Superior Courts included in our study between 1994 and Table 3A. The next largest categories of claims were premises liability (14%), intentional torts (10.9%), professional malpractice (6.4%), and products liability (3.4%). See Figure 4A. Automobile accidents account for an even 14 0% 3~ 6.4% 10.9% Automobile lntrntiorw Products Liability 9.5% Prcmom Lability Professional Malpractice otet Figure 4A Type of Claim : Aggregate Superior Court Filings (Source : Table 3A). greater percentage of tort filings in State Courts. Auto claims made up 71.9% of State Court tort filings in our study. Table 3B. As we found in Superior Court, the next greatest number of tort claims involved premises liability (9.2%), intentional torts (8.6%), professional malpractice (2.8%) and products liability (2.4%) 21 See, e.g., Deborah R. Hensler, Trends in Tort Litigation : Findings from the Institute for Civil Justice's Research, 48 Ohio St. L. J. 479, 494 (1987) [hereinafter cited as Hensler] ; Smith, supra note 6, at 2 (auto claims were 60% of all tort claims). Cf. DeFrances II, supra note 6, at 2 (automobile accident claims comprise the largest percentage of tort claims disposed by trial) ; Moller, supra note 6, at (automobile claims accounted for largest percentage of tort jury verdicts in each of the jurisdictions studied). 1 7

26 respectively. See Figure 4B. The combined Superior and State Court data reflect the following relative ranking of Automobile Intentional Products Liability - 5.1% 2.4% 2.8% 8.6% 9.2 o Premises Liability Professional Malpractice Other claim types : automobile (67%) 22, premises liability (10.6%), intentional torts (9.7%), professional malpractice (3.8%), and products liability (2.8%). See Figure 4C. Figure 4B Type of Claim : State Court Filings (Source : Table 3B). As to be expected, the type of tort claims varied by jurisdiction. Automobile accidents 67.0% account for a higher percentage of tort claims I0.6, ; 11 Automobile Intentional Products Liability 6.1% 2.8% 3.8% Premises Liability Professional Malpractice U Other filed in more rural areas than in the courts of urban counties. More than 80% of all tort claims filed in Irwin and Oconee counties over a four year period involved automobile accidents. Table 3A. The corresponding figures in Bibb Figure 4C Type of Claim : Combined State and Superior Court Filings in Cobb, Fulton and Gwinnett Counties (Source : Table 3C). (52.6%) 23 and Fulton (62.2%) counties were much lower. Tables 3A and 3C. There are also `'`This figure probably would have been higher had we collected Fulton County State Court data from The percentage of auto cases in Fulton County State Court was consistently higher than in Superior Court (Compare Table 3A and 3B), and there are greater number of tort cases filed in State Court as compared to Superior Court. Table 1 D. 23 The percentage of automobile claims in Bibb County might well have been higher had we access to State Court filings. Such claims were found in greater numbers in Fulton County State Court as compared to Superior Court. Compare Table 3A and 3B. The generalization that automobile accidents are more dominant in rural areas would likely remain true, however. 1 8

27 certain types of claims that are filed with much greater frequency in some jurisdictions as compared to others. For examples, tort claims brought by railroad employees against their employers under the Federal Employers' Liability Act24 (FELA) accounted for 8.8% of all tort claims filed in Gwinnett State and Superior Courts and 3.5% of tort suits filed in Bibb County Superior Court. Tables 3A and 3C. Such claims were rarely, and sometimes never, filed in the courts of the other four counties. Table 3A and 3C. A pattern of claim types dominated by automobile accidents followed by premises liability, professional malpractice and products liability has been reported in other studies." It is also the same relative mix of cases we reported in our previous study.26 In this Report we listed intentional torts and FELA as separate categories of claim types. In our previous study, we included those claim types under a generic heading of "Other".27 We decided to report them separately in this study because FELA cases appear to constitute an important component of the tort docket in some jurisdictions and, frankly, because we were surprised to find as many intentional tort claims as we did. 2S On the whole, however, the mix of claim types found in U.S.C. A. 51 et. seq.. 25 See, e.g., Smith et. al., supra note 6, at 2. Cf. DeFrances II, supra note 6, at 2 (automobile accident cases constitute the largest number of trials in tort cases, followed by premises liability, medical malpractice, intentional torts, other negligence and products liability) ; Moller, supra note 6, at 11 (the greatest number of verdicts in tort cases are in automobile cases followed by premises liability, medical malpractice and products liability claims). 26 Eaton & Talarico, supra note 1, at Id., at 703, Table 8A. "The Bureau of Justice Statistics and the National Center for State Courts found that intentional torts accounted for only 2.9% of the tort filings in its sampling of state courts of general jurisdiction in the nation's 75 largest counties. Smith et. al., supra note 6, at

28 Georgia courts has been and continues to be consistent with that reported in other states and reflects a tort docket overwhelmingly dominated by automobile accident cases. B. Indicators of Complexity One indicator of complexity is the type of claim. As discussed above, automobile accidents dominate the Georgia tort docket. Tort suits stemming from automobile accidents are commonly characterized as "simple" claims. 29 Such claims are governed by substantive law that is doctrinally stable, are subject to routine processing, and generally involve modest injuries that occur under commonplace circumstances. 30 For these reasons, automobile accident suits are considered most amenable to alternative dispute resolution." Other indicators also suggest that the overwhelming majority of tort claims filed in Georgia courts involve relatively simple disputes. Individuals were the named plaintiff in 97.1% of all tort claims filed in Superior Court (Table 4A) and in 80.7% of tort claims filed in State Court. Table 4B. Insurance companies filed 16.7% of the tort suits in State Court, presumably asserting rights of subrogation. Table 4B. Individuals were also the named defendant in 72.5% of the Superior Court and in 78.6% of the State Court filings. Tables 4A and 4B. Thus, most tort claims involve disputes between individuals. By far the most common pattern involved a single plaintiff suing a single defendant. A 29 Hensler, supra note 21, at d d.. 20

29 single plaintiff was named in more than 76% of the Superior Court and 77% of the State Court filings. Tables 4C and 4D. Single defendants were named in 55.8% of the Superior Court and 64.6% of the State Court tort filings. Tables 4C and 4D. More than 97% of the Superior Court and almost 95% of the State Court tort cases involved no more than two plaintiffs. Tables 4C and 4D. In Superior Courts, two or fewer defendants were named in more than 83% of the complaints and more than 95% of cases named no more than four defendants. Table 4C. The corresponding figures for State Court filings were 88.2% and 97.5%, respectively. Table 4D. In more than 90% of the Superior Court and 81 % of the State Court tort cases, the plaintiffs were represented by no more than a single attorney. Tables 5A and 5B. The plaintiff was represented by no more than two attorneys in more than 95% of all tort cases filed. Tables 5A and 5B. Defendants were represented by no more than one attorney in more than 77% of the Superior Court and 64% of State Court tort cases. Tables 5A and 5B. Fewer than 6% of the cases involved three or more defense attorneys. Tables 5A and 5B. While claim type, the number and type of litigants, and the number of attorneys are only rough measures of case complexity, 32 they point to a consistent overall impression of simplicity. By far the most common tort case had an individual plaintiff suing an individual defendant over an automobile accident with each party represented by one attorney. More factually and legally complex cases involving multiple parties and attorneys were comparatively rare. V. Disposition Patterns "For a recent article describing the difficulty in defining "complexity" and arguing that courts are competent to handle "complex" disputes, see Jeffery W. Stampel, A More Complete Look at Complexity, 40 Ariz. L. Rev. 781 (1998)- 2 1

30 Our discussion of disposition patterns will focus on methods of disposition and percentages of cases disposed within one and two years of filing. Our data base here consists of cases that were filed and disposed within the time period studied. Thus, it does not included cases that were pending at the time we collected the data." Of the 20,726 tort cases filed and disposed between 1994 and 1997, 6,273 were Superior Court and 14,453 were State Court cases. Tables 6A and 6C. Consistent with the findings in our previous study, the pattern remains one in which settlement is the norm and a trial of any sort is very much the exception. A. Trials Our previous study reported that less than 7% of cases were disposed by bench or jury trial. 34 We found an even smaller percentage of trials in this study. Trials of any sort were used in less than 5% of tort cases disposed in State and Superior Courts. Tables 6A and 6C. Jury trials resolved 4.3% of the cases disposed in Superior Courts and 3.6% of State Court cases. Tables 6A and 6C. Bench trials disposed 0.5% of the Superior Court cases and 1.2% of State Court cases. Tables 6A and 6C. There were some interesting variations among and within jurisdictions. Jury trials resolved a much greater percentage of Superior Court claims in Gwinnett (8.6%) than in Cobb "Most of the data were collected during the summer of Some data were collected during the summer of Most of the cases coded "pending" were filed in We checked cases coded as pending to see if there were any obvious differences between these cases and those that had been disposed. We found that pending and disposed cases were quite similar in terms of types of claims, number of litigants and number of attorneys. 34 Eaton & Talarico, supra note 1, at

31 county (1.9%). Table 6A. The differences were much smaller in State Courts, where jury trials accounted for 5.7% of dispositions in Gwinnett and 3.7% in Cobb counties. Table 6C. A higher percentage of automobile accident cases were resolved by trials than other types of tort claims. Jury trials disposed 5.2% of the automobile accident cases filed in Superior Courts and 4.3% of the State Court automobile accident cases. Tables 6B and 6D. By way of comparison, jury trials were used to dispose of 3.1 % and 2.8% of the professional malpractice cases in Superior and State Courts, respectively. Tables 6B and 6D. B. Settlements There is no formal designation of "settlements" on court docket sheets. We assumed that all consent decrees, consent judgments and voluntary dismissals with prejudice reflected a settlement of some sort. With that assumption, we found that 54.5% of Superior Court and 51.2% of State Court cases were disposed by settlement. Tables 6A and 6C. These percentages are lower than prior studies have reported. We found that 64.6% of the tort cases filed and disposed in four Georgia Superior Courts between 1990 and 1993 were settled." None of the Superior Courts included in this study reached that figure. Table 6A. The Bureau of Justice Statistics estimated that 73.4% of tort cases settled based on their sampling of cases from large urban jurisdictions, including Fulton County, that were disposed in FY Methodological differences might explain some of the differences between the BJS estimate and "Eaton & Talarico, supra note 1, at Smith, supra note 6, at 3. 23

32 our calculations. 37 Methodology does not explain the almost 10% decline in the percentage of cases disposed by settlement in our two studies. In both Superior and State Courts, automobile accident claims were more likely to settle than other types of tort cases. Settlements accounted for 61.3% of dispositions of automobile cases in Superior Court and 53.2% in State Court. Tables 6B and 6D. Less than 35% of libel and slander cases were settled. Tables 6B and 6D. C. Other Methods of Disposition If the percentage of cases disposed by trial and settlement has declined, then the percentage of dispositions by other methods must have increased. One disposition type that has increased is "Dismissals". There are a variety of grounds for dismissal included under this heading, but the largest sub-category is "voluntary dismissal without prejudice". 38 In our prior study, "dismissals", including voluntary dismissals without prejudice, accounted for 17.7% of the aggregate dispositions." Our current data reflect that 26.4% of Superior Court and 26.8% of State Court dispositions were dismissals, the vast majority of which were voluntary dismissals without prejudice. Tables 6A and 6C. This group of cases is important since a case dismissed 37The BJS estimate is based on a sampling of cases from a pool of tort cases disposed in fiscal year The calculations in both our current and prior study are based on a review of all cases filed and disposed within the calender year time period of the study. "For example, we found that 26.4% of the Superior Court and 26.8% of State Court dispositions were dismissals. Tables 6A and 6C. The percentages of voluntary dismissals without prejudice were 19.1 % and 20.5%, respectively. 39 Eaton & Talarico, supra note 1, at 710, Table 12A. 24