Data from the Department of Justice’s Bureau of Justice Statistics (BJS) indicates that roughly 4% of personal injury cases go to trial. 1 The odds of a case proceeding to trial are slim, but those odds shouldn’t be confused with the actual number of tort claims that are initiated or filed in court.
Prevalence of Tort Claims in the United States
A tort is an act of negligent or intentional harm inflicted upon a person. More than 440,000 tort cases are filed in US courts each year, and that is likely a conservative estimate.Further, it doesn’t include the number of cases that settle or disappear before any lawsuit documents are filed in court. All told, the number of personal injury claims that arise in the United States is more likely to be in the millions.
If data on the increase of tort cases filed in Federal court is reflective of the overall trend in personal injury cases in the country, the number of tort cases has been rising consistently since 2012. There was an exception in 2020 and 2021, a slight decline attributed to the COVID-19 pandemic. 2
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Most Personal Injury Cases Settle Before Trial
The majority of personal injury cases are resolved out of court, although frequently that only happens once the plaintiff files a lawsuit. Per the BJS report, 96% of tort claims never go to trial. The reasons for that are variable, including:
- The parties reached a settlement agreement
- The plaintiff withdrew their claim
- The insurer denied the claim and the claimant did not pursue further
- The case was never followed-up
- The judge dismissed the case or rendered a default judgment
Lawyers Prepare for Trial to Win Settlements
Whether you’re a plaintiff or an attorney, it’s a viable assumption that your personal injury case won’t end up at trial. However, good lawyers plan for the eventuality of a court battle not only out of logical caution but as a wise litigation strategy. A personal injury case that’s built to succeed at trial can win in negotiations long before it ever gets that far.
If the evidence demonstrating negligence, the medical proof of a client’s injuries, and the pain and suffering damages look like they might win a judge or jury over, a car accident claim is much more likely to settle for the amount an attorney demands for their client.
Insurance companies and large corporations aren’t generally interested in losing publicly, admitting fault or wrongdoing, or inviting other lawsuits through the appearance of weakness. They’re even less interested in paying to lose. The lesser of evils is to pay the claim in private even if the amount is more than they want—and it almost always is. In the long run, they save money on litigation costs which could be hundreds of thousands or millions of dollars if the case drags out. At the end of it all, there’s still no guarantee the trial will conclude in their favor.
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Insight Into Tort Cases that Go to Trial
If it seems likely that an injury case will go to court, it’s helpful to know how these cases often play out in court for strategic reasons. It’s also useful so you can inform clients about what to expect at pre-trial. The data the BJS reported on personal injury cases provides pertinent insight into:
- Trial winners
- Compensation awarded to plaintiffs
- Punitive damages
- Case processing times
- Post-trial activity
In a sample of 26,928 tort, contract, and real estate trials, 60% were tort cases. According to the U.S. Department of Justice, an estimated 16,397 tort cases went to trial across the country the year the agency conducted the study. As previously mentioned, that amount represents only 4% of the total personal injury cases filed in court.1
Most Personal Injury Cases Are Tried Before a Jury
Tort cases are usually heard by juries. Of these cases, juries heard 90% of trials while a judge adjudicated the other 10%. Generally, plaintiffs and defendants have a right to a jury trial; however, if neither party makes a formal request, a judge will hear the trial by default.
Car accidents, medical malpractice, premises liability, and product liability cases are more prone to go before a jury. In contrast, a higher percentage of slander/libel, conversion, false arrest or imprisonment, and professional malpractice cases are decided by a judge than the aforementioned injury cases.
More Car Accidents Go to Trial Than Any Other Tort Case
When breaking down the data into types of injury claims that go to trial, the Department of Justice reveals:
- Nearly 60% of the tort trials were for motor vehicle accidents
- 15% were medical malpractice cases
- 11% were premise liability cases
- 4% were intentional torts
- 2% were product liability cases
The remaining 8% consisted of:
- Animal attacks
- False arrest/imprisonment
- Professional malpractice
- Other or unknown torts3
People Tend to Sue Other People More than They Sue Businesses
In trials where an individual brought a lawsuit, the defendant was most often another person. The data shows this to be 53% of trials. Car accidents, animal attacks, and medical malpractice lawsuits are more frequently filed against other individuals while premises liability and product liability cases are often brought against businesses. Businesses were the defendants in 27% of tort trials. Governmental agencies and hospitals accounted for 15% of trials.4
Who Wins at Trial in Tort Cases?
As one might expect, the data on who wins at trial between plaintiffs and defendants in personal injury cases is roughly a toss-up. According to the Bureau of Statistics data, plaintiffs won slightly more than half of the personal injury trials surveyed. As for whether the odds are better for a trial by jury or by a judge, the study shows:
- Judges decided in favor of plaintiffs in 56% of the trials they adjudicated.
- Juries ruled in the plaintiffs’ favor in 51% of cases.5
Personal injury lawyers here are better served by knowing the judges and jury pool in their jurisdiction to glean a potential outcome of a trial rather than looking to statistical data to illuminate a path forward.
Percentage Plaintiff Wins Vary by Case Type
There is, however, more useful data on the variation between outcomes of different types of tort trials. Plaintiff win rates varied significantly depending on the type of court case litigated. Estimated plaintiff wins were reported as follows:
- 75% of animal attack cases
- 64% of automobile accidents cases
- 55% of asbestos product liability cases
- 52% of intentional torts cases
- 38% of premises liability cases
- 22% of medical malpractice cases
- 20% in non-asbestos product liability of cases
- 16% of false arrest or imprisonment cases
Plaintiffs experienced similar, if not nearly identical, outcomes in multiple types of personal injury cases regardless of whether the fact finder was a judge or jury. Judges and juries tended to rule in favor of the plaintiff at nearly the same rates in motor vehicle accidents, premise liability, intentional tort, and professional malpractice cases.
Interestingly, more judges found for plaintiffs in medical malpractice cases than juries did. Plaintiffs won 50% of medical malpractice trials that were tried in front of a judge and only 23% of cases tried before a jury. Judges were also more likely to rule for plaintiffs in conversion cases. Meanwhile, juries decided for plaintiffs more often in animal attacks, general product liability, false arrest and imprisonment, and slander/libel cases.5
Court Damages Awarded in Personal Injury Cases
Plaintiffs in many types of injury cases receive relatively modest court awards. For example, in automobile accidents, the median compensation awarded was $15,000 in the BJS report. Additionally, plaintiffs in animal attack, slander, intentional tort, and conversion trials won $38,000 or less in damages.
Plaintiffs in other types of cases, such as premise liability, product liability, medical malpractice, and professional malpractice took home substantially more money. Medical malpractice and premise and professional liability each had a median court award of more than $400,000.
The court awarded $1 million or more in 30% of medical malpractice cases that were represented in the study. These high-damage awards likely correlated with the two-fifths of medical practice cases that were wrongful death claims. In addition, the data shows that judges adjudicate cases with much lower damage awards than juries.6
Punitive Damages Are Rarely Sought or Awarded
Economic and non-economic damages together make up 90% of the total monetary awards given to plaintiffs. Economic damages comprised 47% of that amount while non-economic damage accounted for 44% of payouts.
Punitive damages made up nearly 10% of trial damages awarded to plaintiffs.
These exemplary damages are rarely sought in tort cases. This is likely due to the fact that states often have strict criteria for awarding punitive damages, demanding plaintiffs prove gross negligence or intentional acts. Some states also limit the types of cases that can seek them.
Plaintiffs only sought punitive damages in 9% of the tort trials they won. These damages were most often sought in slander/libel cases, conversion cases, and intentional tort cases. They account for 69% of conversion damages and 33% of slander and libel awards.7
How Long do Tort Cases that Go to Trial Last?
Overall, cases heard by judges are processed faster than those tried before a jury for reasons that may be obvious. Juries have to deliberate and come to a mutual agreement about the facts of the case and the subsequent verdict. Further, there are other considerations and accommodations made for jury trials that are avoided when a single judge rules on a matter.
Half of all the tort cases tried before a jury took 23 months from initial filing to a resolution compared with roughly 18 months to close a case tried before a judge. Altogether, for all court cases, the median amount of time it took to process was about 22 months. The courts tend to dispose of injury cases like animal attacks and car accidents faster than medical malpractice, product liability, and intentional tort cases, for instance.8
Developing a Litigation Strategy Just Means Preparing for Court
Although 96% of personal injury cases don’t go to trial, preparing a case under the assumption that it will settle is a grave mistake. Prepping for a court battle at the outset is the best way to put yourself and your client in a position to obtain a desirable settlement. If that doesn’t pan out as planned, you’ll be ready to try the case in court.
You should have a well-developed litigation strategy before you file a lawsuit. You’ll miss crucial—and sometimes irretrievable—opportunities to achieve your client’s objectives if your tactical decisions are reactionary or on-the-fly. A litigation strategy with an eye toward maximizing results in court should consider the following:
The jurisdiction where you will try the case – If you have the option of multiple jurisdictions for your case, consider the laws in that area, the amount of time cases tend to take, the way the court rules on similar cases, the court’s experience with such cases, the jury pool in that local area.
The judge who will preside over the trial – It’s important to research your judge to find out their leanings when it comes to granting or dismissing motions, their courtroom expectations and demeanor, their propensity for admitting or excluding expert testimony, the legal authority they tend to reference, and how they’ve ruled on similar cases in the past.
The opposing counsel– The opposing counsel will affect virtually every move you make in your case so it’s imperative you know them well. You should know their litigation style, if they have history with the judge, whether they tend to settle quickly or file motions to dismiss, or if they have particular expert witnesses. Knowing your opponent is crucial intel for planning your litigation strategy.
Prepare for Trial Despite the Statistics
Knowing the statistics of how personal injury cases often play out at trial provides important insight for attorneys who want to get the best results for clients. However, the best way to secure a favorable outcome for those you represent is to make sure every case is prepared for trial even if you never expect it to get that far.
- Thomas H. Cohen, “Tort Bench and Jury Trials in State Courts, 2005.” Bureau of Justice Statistics. (November 2009). https://bjs.ojp.gov/content/pub/pdf/tbjtsc05.pdf, Pg. 1
- Amanda Bronstad, “Some Claims Aren’t as Viable’: Tort Lawsuits Over COVID-19 Are on the Decline.” (August 2022). https://www.law.com/2022/08/25/some-claims-arent-as-viable-tort-lawsuits-over-covid-19-are-on-the-decline/.
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 2
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 3
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 4
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 5
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 6-7
- Cohen, “Tort Bench and Jury Trials in State Courts, 2005” Pg. 9