The bloggers here are so biased, the self-evident eludes them. Ignore the pie chart on media cases. Look only at the one on Trial Outcomes.

In 73% of cases, the plaintiff loses in torts. Compare to the standard of careful lawyer care set in the criminal law, where 75% of the time, the prosecution wins.

The outcome of torts is a mass tort itself, by its failure.

In the criminal law, the prosecutor is inexperienced, has a small research budget, carries 200 cases at a time, gets paid $35K a year, has a burden of beyond a reasonable doubt for each element, must prove the mens rea for each element, and wins 75% of verdicts.

In torts, the plaintiff lawyer is experienced, has a huge support budget, carries a dozen cases, gets paid 10 to 100 times as much, carries a burden of preponderance of the evidence, has negligence or strict liability to show, and loses 75% of the time. This is proof of tort lawyer carelessness, or worse, the filing of numerous frivolous suits to win at a tort lottery.

If the above rate of losing prevails year after year, that is scienter on the part of the plaintiff bar. The plaintiff bar, as a class, owe defendants $trillions after punitive damages. The pie chart on case outcome, if repeated year after year shows the intentional tort of barratry, a crime in some places.

Actually, I've seen statistics showing that in some jurisdictions, the prosecution loses 60%+ of the time.

Actually, I've seen statistics showing that in some jurisdictions, the prosecution loses 60%+ of the time.

Really? I would be surprised. Can you post a link?

Here's one reference - San Francisco county, which is purported to have a 34% conviction rate. I know I've got the study this letter refers to, but I can't for the life of me find it now.

http://www.threestrikes.org/mrcomments_12.html

The analyses by both Supremacy Claus and Justinian are both wrong in important aspects, even if they come to different conclusions. Hint: the stats above do NOT show that "Plaintiffs lost almost three out of four cases filed," as Justinian puts it, or that "In 73% of cases, the plaintiff loses in torts." Justinian correctly notes (as SC doesn't) that this statistic only applies to a tiny subset of cases, but both he and SC miss the fact that most cases settle. All this shows is that auto industry defendants are more rational in terms of assessing a case and deciding whether to settle than plaintiffs are.

Also, Justinian, I've pointed this out before, but any study which blindly counts "cases" is going to be misleading, because it treats a class action suit with a quarter of a million plaintiffs the same as a single individual suing. For the purpose of looking at success rates, they ought to be weighted differently.

Finally, your pie charts are faulty, because they don't add up to 100%. Perhaps the first, which adds up to 103%, is just the result of rounding error, but your second pie chart is clearly wrong, because it adds up to 112%.

If I've interpreted what you've done correctly, in the first pie chart you've doublecounted the punitive damages cases.

Justinian, just as with civil cases, your criminal statistic (I'll assume it's accurate) misses the fact that most cases settle (or "plea bargain," as it's called in the criminal arena.) There is no jurisdiction -- not even San Francisco -- where 34% of those charged are convicted.

Here is a summary of criminal anti-trust verdicts, a tort like, complex accusation.

http://www.abanet.org/antitrust/at-source/06/07/Jul06-Warin7=20f.pdf

Table 5 on page 15, 29% federal criminal defendants acquitted after trial.

http://www.ojp.usdoj.gov/bjs/pub/pdf/fccp01.pdf

In state court conviction rate was higher, but uncertain if that included plea bargaining.

http://www.ojp.usdoj.gov/bjs/pub/pdf/scpld01.pdf

Same in small districts.

http://www.ojp.usdoj.gov/bjs/pub/pdf/scpsd01.pdf

David: I tried to exclude settlements and plea bargains from my references. If one includes those, the conviction rate of the criminal law is over 90%. If one includes routine insurance settlements in a fender bender, the rate would also be extremely high. The rates are so high as to dwarf to insignificance the small number that remain in dispute.

In fairness to the current system, the high settlement and plea rates represent a very high level of efficiency and competence. It approaches the performance of doctors with their overestimated 2% incidence of malpractice in a study with faulty review of decisions. In other words, doctors have a 98% rate of competence within the standard of due care, even in that biased study. The lawyer comes close, both in torts and criminal law, with settlements and convictions in the 90% range.

I sought to get at statistics of only the remaining, disputed cases that went to trial. Those marginal remaining cases are upsetting.

It is in those that the plaintiff bar fails to meet the professional standards of careful lawyer care set by the criminal prosecutor. The plaintiff bar fails despite advantages an order of magnitude greater compared to the criminal prosecutor, across all aspects of trial advocacy.

Year after year, tort claims lawlessly (by barratry) harass torts defendants. Most tort defendants are innocent, most criminal defendants guilty, so say juries. That injustice to the tort defendant causes the friction. It necessitates regulation of the out of control plaintiff bar by juries, and not by their biased, pro-rent seeking, lawyer good pals on the bench.

Come on, the lawyers here will love it. Over three quarters of tort cases with an innocent verdict may generate a second case of legal malpractice against a wealthy plaintiff lawyer. How would you like to own one of the business jets of these predators? You'll love it even if you are a hippy lawyer wearing sandals and flowers in your hair.

David, I've just got time to make a couple of quick points as I've got a busy day today. I do hope you'll have time to comment upon my full article, which will be posted any day now.

First, the pie charts aren't inaccurate. There is overlap between the categories of "Plaintiff win" and "Punitives assessed." Any case in which punitives were assessed was a case in which the plaintiff won. Perhaps I should switch to a bar chart or some other format. Thank you for pointing out the potential confusion. (I'll also doublecheck my figures, too. I made the chart from handwritten notes, and my handwriting is atrocious.)

Second, let's set aside our disagreements about case settlement ratios and just focus on the main point of this post: Do you disagree that the media gives more coverage to cases in which plaintiffs win, and especially win punitive damages than those cases in which the defendant wins? If you disagree, are you relying upon any evidence? I ask because I haven't been able to find any evidence that media coverage isn't skewed.

Justinian: The media does not cover the trillions of miles travelled by people who made it home safely. It does not cover the routine settlement after an accident. It covers the disturbing, outrageous, and sickening.

The left pie chart is not newsworthy. It is to people like me. I love the lawyer. It breaks my heart to see such a poor performance by the plaintiff bar.

If you believe in torts benefit to improving product and service, answer the simple question. Should juries regulate the plaintiff bar in legal malpractice claims by adverse third parties to remedy these appalling failure of professional practice?

No lawyer here or anywhere will answer the question as to whether the jury is good enough to regulate the lawyer? Why can't the lawyer even answer that question, yes or no. Blink once for yes, twice for no.

Why won't they answer when it comes to helping the lawyer improve lawyering by torts?

OK, guys - here's another perspective: As you know, our system of justice -as magnificent as it is known to be- is designed to allow the parties to slug it out in public, often brutally, so that one party is discerned to have a more persuasive argument by the jury or judge deciding the case. This is not the same as striving for the 'truth,' so let's not forget that truth isn't directly the objective with our system as it is purported to be for the French, for instance (although I know nothing of how justice is 'done' in France).

I don't have the stats in my head, and you're probably more adroit than I am at looking this sort of thing up, so bear with me... You can't compare criminal defendants to corporate tort respondents because there is generally ZERO comparison in terms of the resources they have for defense flat out, but also in the 'criminal' case most defendants have fewer resources than the prosecutors and most tort defendants tend to have significantly more than the plaintiff law firm and the plaintiff put together, even when it's a mass tort. So you're really talking apples and oranges to compare going after both sets of defendants.

There are also different motivations for tort bar plaintiff attorneys - to win a med-mal case, for instance, they have to go out of pocket in tens of thousands of dollars likely for a 50/50 chance of winning. So there is a HUGE incentive for them to settle for a paltry amount just to avoid being out of pocket with no guarantee of return. Even a savvy plaintiff can be run over by the legal process if their attorney has had more losses than wins and needs to staunch financial hemorrhaging for his/her office - it's a conflict of interest, but our system requires the plaintiff to go back to court to prove THAT if that ends up playing a role in their case.

I'm just saying that there are a lot of factors unrelated to a case that play a role in how our justice system works...

Haley: What are you claiming? Innocent criminal defendants are being found guilty or guilty tort defendants are being found not liable? Juries are like children listening to fairy tales, and most influenced by the side with the best theater production values? If you are making such claims, you do need to provide some evidence.

Thanks for asking, SC -

Actually, I'm saying something a bit different, and Eric Turkewitz's post today, 'Plaintiffs' Personal Injury Attorneys Get Analyzed' covers a related point much more fully. I'm saying that the plaintiffs themselves are not always well represented by their attorneys who, of course, also have their own interests in the cases they take on. I understand that money makes the world go around, and all, but from my personal experience, the norm seems to be plaintiff attorneys prefer by far to settle for a very small amount of money instead of laying out funds to build a case (with experts or other evidence) to take a valid but complex claim to court where it can actually be fought out and DECIDED and shape our society, or, of course, lost. However, even a lost case can raise standards. Seems the Proverbial 'bird in hand' tends to speak to the strategic motivation for a good percentage of the plaintiff bar, and they are not always clear in conveying that intention when they sign an agreement to represent a client.

I'm cognizant that humans have to meet their own needs, and I'm not trying to damn the whole plaintiff bar, but I will say that the system is fundamentally slanted against plaintiffs themselves in this way. It seems it's the plaintiff attorneys who get more of a 'day in court,' so to speak, than the actual plaintiffs. Unless the definition of 'justice' is - 'my attorney's primary interest was in getting paid SOMETHING, and all I got was (60% of) a low-ball number from the other side since it wasn't worth it to my attorney to work up arguments for my case.'