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Category: In Your Face

Today, I came upon a post by Ted Frank at Overlawyered which accuses Public Citizen of lying with statistics AND Cyrus Dugger of Tort Deform and me of reflexively regurgitating trial-lawyer propaganda without thinking. I am getting accustomed to Ted's shrillness, but this cascade of high-pitched ranting is over the top.

It all began with a very short article posted by me entitled, And, The Leader In Filing Frivolous Lawsuits Is....Corporate America

"A recent study by Public Citizen found that in 2001 in Arkansas, Mississippi, Cook County Illinois., and Philadelphia, corporations were 3.3-5.8 times more likely to bring a lawsuit than individual tort plaintiffs. The study also found that when these corporations did file lawsuits, they and their attorneys were 69% more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses."

Ted Frank, who apparently was a statistician in a former life, leads with this salvo:

Businesses "More Likely to Sue Frivolously" trumpets Bizarro-Overlawyered and Greedy Trial Lawyer, quoting a Public Citizen report. Except not even the Public Citizen report supports this claim, and no mathematically-literate person reading the report could think so.

After his analysis and comments he proclaims:

That Cyrus Dugger and GTL got it so wrong shows the danger of reflexively regurgitating trial-lawyer propaganda without thinking.

The meat of Ted's tirade is excerpted below:

Lying with statistics: Public Citizen edition

Here's what the Public Citizen press release says: "The study also found that when these corporations did file lawsuits, they and their attorneys were 69% more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses."

In fact, all the study did was look at the most recent hundred Rule 11 sanctions issued by federal judges. As we've discussed before, what Rule 11 considers "frivolous" is considerably narrower what the common non-lawyer considers "frivolous." But let's take Public Citizen's methodology at face value and ignore the issue with the small sample size, or the fact that Public Citizen didn't investigate whether the sanctions were reversed on appeal. Out of the 100 sanctions, a whopping thirty-five were issued to corporations. Thus, corporations, say Public Citizen, are more likely to be sanctioned.

Now, those of you who have graduated second grade might be wondering, "But isn't 35 a minority of 100?" And you would be right. Public Citizen gerrymandered corporations into the leading source of sanctions by (1) combining all corporate suits into one group; and (2) separating individual suits into three groups: individual tort suits with an attorney, individual non-tort suits with an attorney, and pro se suits. Once those 65 sanctions are divided into three different categories, only 22 of them are for represented individuals suing in tort, and 35 is 69% more than 22. Thus, says Public Citizen, corporate lawsuits are 69% more likely to be sanctioned than individual tort plaintiffs.

Except even this manipulatedly bogus statistic is wrong on its own terms. "More likely" requires a denominator. And, as Public Citizen points out, corporations file 3.3 to 5.8 times as many lawsuits as individual tort plaintiff, in part because half of all corporate suits are contract suits, and Public Citizen omitted individual contract suits from the other side of the equation. But only 1.7 times as many sanctions are issued to corporations. Do the junior-high-school math with denominators, and one finds that, in fact, using Public Citizen's data, individual tort plaintiffs represented by attorneys are between 107% and 264% more likely to be sanctioned for frivolous filings: Public Citizen and DMI got it precisely backwards. (NB also that Public Citizen's press release made the similar mathematically-illiterate error of translating "3.3 times as many lawsuits" into "3.3 times more likely to file a lawsuit," despite the absence of a comparable denominator: Costco, for example, engages in millions of times as many transactions as an individual.)

Peter Nordberg from Daubert On The Web has posted the first comment to Ted Frank's hyperventilation. Among his eight specific critiques of Ted's article is this arrow to the heart of the matter:

You've articulated a scathing critique of one English-language sentence, from a press release, summarizing the statistics. It's important, I agree, that sentences be accurate, in press releases and elsewhere. But the issue is also the numbers themselves. The following sentence, for example, would be a basically accurate summary of the Public Citizen numbers (with that caveat about the margin of error): "When a lawyer in a federal lawsuit is sanctioned for frivolous conduct, he's 69% more likely to be representing a business than to be representing an individual suing in tort." There isn't one right denominator, you know. It's a matter of what aspect of the numbers might interest someone. And if the question on the floor is who's responsible for the costs of the frivolous litigation that is supposedly placing such a damper on commerce, it's scant consolation, perhaps, if the responsible parties also bring a very high number of more meritorious suits.

I stand by my initial post and agree with Peter Nordberg's full and careful analysis of Ted Frank's critique of the methodology of the study.

I agree there is danger in reflexively regurgitating propaganda without thinking. (If nothing else, it sounds like it may be harmful or even deadly.) There is also danger in applying second grade math to statistical analysis. It may only impress the second graders among us.

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Posted by: Justinian Lane at October 4, 2006 12:12 PM

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