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Some Truths About Florida's Tort System.

The business community is again trumpeting the branding of Florida as a "judicial hellhole" whose tort system is running out of control. Don't be misled by distorted--if not fabricated--"facts".

What is the truth?

Fact #1. There is only one trustworthy source of complete and accurate information on civil case filings in Florida-the Supreme Court's Office of the State Courts Administrator.1 Data derived from anecdotal reports, or contained in self-serving studies commissioned by special interest groups or conducted by special interest-funded "research institutes" or other biased front groups, must be viewed with a great deal of skepticism and the assumption that the primary goal is to mislead the reader by distorting the facts in support of a particular agenda.

Fact #2. The presentation of even valid data can be manipulated in ways designed to grossly mislead the reader. A perfect example of this approach appears in the graph below. Presented as part of recommendations to incoming Governor Scott by some members of Florida's business community acting under the mantle of the Tort Reform and Insurance subgroup of the Regulatory Reform Transition Team, the graph was used as evidence to support their premise that Florida somehow deserves the brand of a "judicial hellhole" placed on it by a national organization (one whose prime mission is to restrict if not eliminate consumers' access to the courts countrywide)2.

This graph obviously shows a significant increase in circuit court filings over the past ten years. The context in which it was presented, however, certainly implies, as it was obviously intended to do, that the tort system is responsible for that increase. Truth or fiction? Well, the numbers are true-and they are from the Office of the State Courts Administrator--but this misleading presentation says absolutely nothing about tort case filings in Florida courts!

The truth is that the graph above presents the total number of all types of cases filed in circuit court. The truth is that in FY 2008-09, the last year shown, civil cases were less than half (45.9%) of the total number of circuit court case filings, while the majority of cases filed that year in circuit court were criminal (17.6%), family (28.2%), and probate (8.3%)3. While this graph certainly illustrates an increasing judicial workload, it does not tell the whole story and it cannot be truthfully used to lay the blame for that increase at the foot of Florida's tort system!

Fact #3. To understand why total case filings in circuit court have increased over the last ten years, one must look at the breakdown of the different types of cases filed in circuit court. The top line of graph below represents the total circuit court case filings and tracks the single line presented in the preceding graph, but the breakout by general type of case reveals much more information. It clearly illustrates that civil cases constituted a fairly small portion of all cases filed until a relatively recent steep increase in filings, and that recent increase also accounts for the bulk of the overall increase in circuit court filings. However, this still does not provide any information about tort cases because the category of civil cases covers a lot more than just tort cases-the collected statistics on civil cases are grouped into nine subcategories, of which only four are actually tort-related.

Fact #4. Looking deeper still at the nine subcategories of civil cases, it is clear that while overall civil case filings have, in fact, increased significantly over the last ten years, the increase is not because of tort cases --it's because of the explosion in mortgage foreclosure proceedings! When the examination of circuit court filings is limited only to civil actions, broken out by the categories tracked by the Office of the State Courts Administrator, it is immediately obvious what type of cases are responsible for the increase-real property and mortgage foreclosure cases. Back in FY 1999-00 this category already represented nearly a third of all civil cases, but over the last ten years these cases have increased six-fold (mostly in recent years) to a staggering number (403,477) that is over 400 times the number of products liability cases (953) filed in FY 2008-09! As is evident in the graph below, the only other category showing an increase of any consequence over this period was contracts and indebtedness cases-business vs. business cases, not tort cases.

Fact #5. The truth is that the total number of circuit civil case filings in the tort categories (professional malpractice, products liability, auto negligence, and other negligence) has actually decreased over the last ten years (down 4.8%), with large decreases in professional malpractice (down 40.6%) and products liability (down 72.5%). During this period, auto negligence cases were up (12.3%) and "other" negligence cases were down (3.5%).

Fact #6. What's more, from April 1, 2000 to April 1,-2009, Florida's population increased 17.3%4 , and, on a per capita basis, filings in Florida's circuit courts for every category of tort case have declined over the last ten years! On a per capita basis, filings of professional malpractice cases were down 49.4%, products liability cases were down 76.6%, auto negligence cases were down 4.3%, and other negligence cases were down 17.7%. Overall, combined tort case filings per capita in Florida weredown 18.8% over the ten year period.

Conclusion: What do circuit court filing statistics really show?

A runaway tort system?

A judicial hellhole??

No, not even close!!

When presented fairly, the numbers don't lie!

Judge based on fact, not fiction.

Notes

1 The Office of the State Courts Administrator collects circuit court data in four categories-civil, criminal, probate and family law. Civil cases are further broken down into nine subcategories (professional malpractice, products liability, auto negligence, other negligence, condominium, contracts and indebtedness, real property/mortgage foreclosure, eminent domain and other). No further detail on types of civil cases is available. The collected data are available online at: http://www.flcourts.org/gen_public/stats/index.shtml

2 The presentation of the Regulatory Reform Transition Team's recommendations can be found at http://www.scotttransition.com/wp-content/uploads/2010/12/Reg-Reform.pdf. See pp.70-72.

3 The collected court data (all circuit filings) used for the calculations herein are:

FY Professional Malpractice Malpractice Products Liability Auto Negligence Other Negligence Condominium Contracts & Indebtedness
1999-00 2,166 3,468 17,362 12,61 531 28,044
2000-01 2,257 6,543 17,747 12,436 339 30,112
2001-02 2,53 4,871 18,345 14,191 361 31,66
2002-03 2,405 2,536 19,299 13,129 277 32,638
2003-04 1,596 2,123 18,539 12,431 151 31,331
2004-05 2,236 3,593 19,847 13,386 191 32,878
2005-06 1,363 732 20,539 12,115 475 36,703
2006-07 1,193 710 19,382 11,885 1,172 42,764
2007-08 1,217 2,609 20,348 13,148 2,54 55,116
2008-09 1,286 953 19,497 12,173 2,327 70,466
FY Real Property/
Mortgage Foreclosure
Eminent Domain Other Total Civil Criminal Family Probate
1999-00 66,232 2,987 29,046 162,446 184,229 344,507 94,054
2000-01 68,651 3,253 30,437 171,775 182,581 362,185 95,02
2001-02 79,647 3,536 31,077 186,218 179,757 371,961 96,712
2002-03 79,429 2,803 32,342 184,858 182,893 369,652 101,736
2003-04 69,759 2,825 35,802 178,97 193,87 378,429 108,183
2004-05 59,907 1,934 32,557 162,116 199,009 365,99 109,505
2005-06 57,272 1,592 33,454 164,245 219,157 365,468 111,583
2006-07 112,84 1,649 34,693 226,288 230,417 356,485 105,486
2007-08 284,266 1,149 38,186 418,579 235,451 350,477 102,532
2008-09 403,477 856 36,159 547,194 209,593 335,854 98,345

4 Population data was obtained from the Office of Economic and Demographic Research website at http://edr.state.fl.us/Content/population-demographics/index.cfm. Data used (all years as of April 1) are: 2000-15,982,824; 2001-16,330,224; 2002-16,674,608; 2003-17,071,508; 2004-17,516,732; 2005-17,918,227; 2006-18,349,132; 2007-18,680,367; 2008-18,807,219; 2009-18,750,483.