I'll see you in court — perhaps

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People are still crashing their cars into one another and products continue to harm consumers.

But the number of personal injury and property damage lawsuits coming to court dropped during the last five years.

Several trial attorneys attribute the slide to a rise in mediation, a more selective approach regarding which cases to take to trial and even less of a need for legal services by some clients.

“I think there are a number of factors coming into play,” said attorney Christine Bremer Muggli, president of the Wisconsin Association for Justice (WAJ). “Lawyers are being more careful and not going to court when they feel they can’t win, or they are more effective in settling claims pre-suit.”

According to statistics from the Wisconsin Director of State Courts office, the number total filings for tort cases including product liability, auto accidents and medical malpractice decreased by nearly 17 percent from 8,174 in 2003 to 6,808 in 2007.

Getting Settled

Bremer Muggli said that the gradual dip in most tort case filings suggests attorneys may be more likely to engage in a settlement rather than chance a costly trial.

She cited a recent article in The New York Times that refers to an upcoming national study of civil lawsuits done by California consulting firm DecisionSet. The study, set to appear in the September issue of the Journal of Empirical Legal Studies, sampled more than 2,000 civil suits from 2002 to 2005 and found that 61 percent of the time, plaintiffs made the wrong decision in taking a case to trial.

“The fact is when lawyers settle all their good cases and only try bad cases, the numbers look worse than if you tried all your good cases,” said Bremer Muggli. “The lesson for plaintiff’s attorneys is sometimes the settlement offer is better than what the jury might offer.”

Attorney Michael J. Gonring has represented both defendants and plaintiffs. He said in his experience as a plaintiff’s attorney, an early settlement is always best. On the other side, he said it depends on whether a settlement is in the best interests of the company.

“From the defense side, if it makes good business sense for the client [to settle], then we’re happy,” said Gonring.

Bremer Muggli again pointed to the DecisionSet study. The data revealed that when the defense wrongly decided to take a case to trial, it cost the defendant an average of $1.1 million, compared to $43,000 in costs for plaintiffs who incorrectly went to trial.

“When people talk about filing frivolous lawsuits, I’d like to know who those people are,” said Bremer Muggli. “We would be bankrupt if we were continuously trying stupid cases.”

Worth the Risk?

As the number of tort filings drops, so have the average damages in the cases going to trial.

According to the most recent figures from the United States Department of Justice, the average jury award in tort jury trial was $28,000 in 2001, compared to $64,000 in 1992.

More recent data compiled by the Jury Verdict Research showed almost a six percent decline in jury verdict awards in personal injury cases from $37,086 in 2003 to $35,000 in 2004.

“It’s really interesting because there is this false idea that people who sue are getting these huge verdicts,” said Bremer Muggli.

That is not to say that there are not still substantial jury awards in Wisconsin, but they generally stem from medical malpractice cases, which are rare in the state.

While a jury awarded $812,000 in damages in one case last year, only four other plaintiffs received jury awards in the 30 medical malpractice trials in 2007, according to Wisconsin Medical Mediation Panels Administrator Randy Sproule.

In 2006, there were only 13 medical malpractice jury trials and two plaintiff awards.

Defense attorney Joseph M. Fasi II said that the 2006 legislation capping noneconomic damages in medical malpractice cases at $750,000 has impacted the amount of time he dedicates to those cases, along with a marginal success rate.

Fasi said he used to dedicate about 80 percent of his practice time to handling medical malpractice cases, but now only spends half as much time in that area.

“It’s frustrating for plaintiff attorneys, because those are expensive cases to take to trial,” said Fasi. “If there is not a high likelihood of success, attorneys are not going to bring them.”

Still See You in Court

Despite the drop, defense attorney James J. Mathie does not see society becoming less litigious.

He suggested that even though fewer cases are being filed, that doesn’t necessarily mean there are fewer claims and more cases are getting resolved prior to a lawsuit ever being filed.

“Plaintiff’s attorneys may have figured out that fewer filings means more money put in their pocket,” said Mathie, past president of the Civil Trial Counsel of Wisconsin (CTCW).

“It costs to litigate, but doesn’t cost to settle.”

Both Bremer Muggli and Gonring said they expect filings will rebound in the future, but there will be fewer cases going to verdict.

“It’s cyclical and I expect a bounce-back at sometime,” said Gonring. “But the court’s reliance on alternative dispute resolution has taken a bite out of trial practice. It’s not that cases aren’t getting tried, but some that would have in the past are getting mediated away.”