The Need for a National Civil Justice Survey of Incidence and Claiming Behavior

Introduction I. Selected Available Civil Justice Data and Their Limitations A. Leading Civil Justice Data Contain Surprises B. Limitations of Existing Civil Justice Data and the Benefits of a National Civil Justice Survey II. What to Track? A. The Nature of the Activities Generating Civil Justice Needs B. The Subject Areas of Civil Justice Activities C. Information to Be Gathered About Civil Justice Incidents and Related Matters III. Prior Research Methodologies and Results on Civil Incidents Conclusion: The Benefits and Plausibility of a National Civil Justice Survey INTRODUCTION Civil justice issues play a prominent role in society. Family law issues such as divorce (1) and child custody, consumer victimization issues raised by questionable trade practices, (2) and tort issues raised by surprisingly high estimated rates of medical malpractice, (3) questionable prescription drug practices, (4) and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating what I refer to as a national civil justice survey ("NCJS"), analogous to the National Crime Victimization Survey ("NCVS"). The NCVS is the primary source of information on criminal victimization. (5) The survey enables the Bureau of Justice Statistics ("BJS") to estimate the likelihood of many crimes "for the population as a whole as well as for segments of the population such as women, the elderly, members of various racial groups, city dwellers, or other groups." (6) In 2005, U.S. residents age twelve or older experienced about 20 violent crimes per 1,000 people and about 150 property crimes per 1,000 people. (7) In comparison, decades-old national research on incidence of civil problems suggests that adults experience a long-term risk of serious personal injury at the rate of 120 per 1,000 and a risk of serious property damage of 400 per 1,000. (8) A more geographically limited early 1980s survey found that a three-year risk of having a civil justice grievance was 416 per 1,000. (9) The rate of civil justice incidents plainly is high enough to warrant systematic quantitative knowledge of their patterns. Part I of this Article briefly reviews selected available civil justice data and their limitations. Part II provides a preliminary discussion of the kind of information about civil justice events that might be gathered in a NCJS. Part III reviews methodologies and results in prior civil justice surveys. Part IV briefly suggests the benefits and feasibility of a NCJS. I. SELECTED AVAILABLE CIVIL JUSTICE DATA AND THEIR LIMITATIONS Important and useful civil justice data exist. BJS projects as well as those of other federal agencies supply much of that information. BJS data tend to focus on the end point of the civil disputing process--litigation-and not on the underlying pattern of grievances and claiming behavior that generate observable disputes. (10) Other data sets, for topics like divorce rates and patient safety data, (11) might already provide adequate information about particular topics. (12) In general, however, sources of civil justice data about other topics are sporadic and depend on reporting by intermediaries rather than by those experiencing the problems. Similar to data collection methods used for crime victimization, a household level survey could provide the most reliable information to assess the true extent of civil-justice-related activity. For purposes of this paper, I try to include a reasonably comprehensive list of civil justice topics that might be included in a NCJS. …