Let the sun shine in: 'sunshine' laws do not 'chill' settlements, say advocates of open courts.

American lawyers recognize that open courts, and public proceedings and records, are hallmarks of our justice system. Yet most lawyers who represent consumers in U.S. courts are aware of the national public-policy debate on the frequent use and abuse of secrecy in our civil justice system.

"Secrecy" in this debate refers collectively no a number of legal mechanisms that may be used to conceal litigation information from the public, government regulators, attorneys handling similar cases, and, in some instances, other courts. This information may include, but is not limited to, discovery material, records of litigation results, the legal community's understanding of the litigation, and sometimes even the litigation's existence.

These secrecy mechanisms include negotiated agreements or court orders to:

* return discovery material to the producing party, keep its content secret, seal it, or destroy it

* keep secret one or more aspects of the case, such as the result, the amount of any compensation paid, and perhaps the fact that the litigation occurred

* seal court files

* create or alter court records to make it difficult or impossible to tell what a case was about, who the parties were, what the disposition of the case was, and, in some instances, to expunge all official references to the case

* vacate a previously entered judgment or other court order

* de-publish a previously published court decision.

While the means may vary considerably, the result and the intent of using any of these secrecy mechanisms are the same.

There will be times when some confidentiality is justified, or even vital, and these secrecy mechanisms are usually entirely legal.

But secrecy can lead to undesirable results, such as when it hides from government regulators and the scientific community information that is critical to public health and safety, removes substantial matters of public concern entirely from the justice system's scrutiny, and multiplies the cost to parties and the court system by requiring repeated litigation of the same facts. Recent real world examples include litigation concerning sexual abuse by clergy, (1) Firestone tire failures, (2) and dangerous baby products. (3)

ATLA long ago took a position against these types of secrecy abuses in litigation. (4) Secrecy tan also be abused through excessive use--when the "exception" of secrecy swallows the "rule" of openness--which can degrade the legal system's public nature and lessen the public's confidence in the courts as the proper forum for resolving disputes.

Any of the secrecy mechanisms described above may be proposed as an element of a settlement agreement, and they often are.

The considerable financial leverage of many defendants and their insurers makes a mockery of any notion that plaintiffs' agreement to secrecy is secured "voluntarily." For years, consumer lawyers have complained that ethical and moral conflicts arise when their clients are presented with demands for secrecy during settlement negotiations. (5)

Curbing secrecy abuse

In response to the emerging understanding of secrecy's pitfalls, numerous court systems and state legislatures have sought to restrict litigants' opportunities to keep their litigation transactions secret, either by prohibiting some secrecy arrangements outright or by narrowing the circumstances under which they will be permitted. Legislative attempts to do this have often failed, but the judiciary's efforts to regulate the process through court rules have been more successful. (6) Each year, more court systems consider whether there is too much secrecy in litigation and what can be done about it. Judges are more attentive to the problem than they were a decade ago, and news media are more supportive of restricting secrecy. (7) At least one legal-ethics board has considered secrecy-related issues. (8)

Different jurisdictions have taken varied approaches, often depending on the particular secrecy mechanism addressed, but their thrust is usually to require greater judicial scrutiny rather than to ban secrecy altogether. Some examples are:

* declaring that there is a presumption of openness for all court records in the jurisdiction

* limiting circumstances in which protective orders may be entered for discovery material

* requiring a showing of good cause before approving secrecy, with the burden on the secrecy proponent 

* requiring public hearings before secrecy orders are granted

* allowing intervention in secrecy proceedings by interested nonparties (such as news media or consumer protection organizations)

* specifying certain matters that may not be kept secret.

The latest such efforts have been in the state court systems of Arizona (9) and South Carolina (10) and in the U.S. District Court for the District of South Carolina. (11)

Chilled-settlements argument

Several arguments for and against secrecy have been advanced in legislative debates, hearing testimony, and written comments to courts that are contemplating amending their rules. The principal ones have been analyzed well elsewhere. One of those arguments might be termed the "chilled settlements" argument. Professor Laurie Dore of Drake University Law School, a nationally recognized authority on court secrecy, has defined its two sides: "[C]onfidentiality proponents believe that restrictions on litigation secrecy will significantly impede the settlement process and unduly burden an already oversubscribed judicial system. Public-access advocates, in contrast, question how critical confidentiality really is to the compromise of most cases when trial represents a lengthy, expensive, and risky alternative." (12)

She added in a footnote, "many public-access advocates doubt whether restricting confidentiality would have any effect upon the frequency or amount of settlement." (13)

Judges and legislators who contemplate using their authority to restrict secrecy in litigation must remember the civil justice system's general policy of encouraging settlement--"a long-established public policy aimed at preserving the autonomy of litigants to resolve their own disputes as they wish and at conserving both public and private resources by avoiding trial." (14) Dore says that promoting settlement underlies Federal Rule of Evidence 408 and its analogues, which hold evidence of a settlement or an offer to settle inadmissible in some situations. She notes, however, that "shifts in the American procedural landscape and in our overall vision of civil litigation ... have called these rationales into question and have suggested that, at least in some cases, party autonomy and the preference for settlement should yield to some greater interest supporting public access." (15)

The tension between the policy of maintaining open courts and records and that of encouraging settlement can be seen in several courts' secrecy-request decisions that acknowledged the pro-settlement rationale but concluded that case-specific circumstances can outweigh it. (16)

Early in the debate on secrecy, the Product Liability Advisory Council Foundation gave Harvard Law Professor Arthur Miller a grant to write a substantial law review article supporting the corporate-defense interest in keeping secrecy liberally available. Throughout the article, Miller cites concerns for litigants' privacy and confidentiality of business information, and urges reliance on judicial discretion, not regulation via legislation or court rule. (17) He also suggests that restricting secrecy could interfere with the settlement process, leaving already overburdened courts with additional cases to try. Miller wrote,

   [P]romoting increased public access to information
   by restricting the discretion of the
   courts to protect confidential information is
   ill-advised. These restrictions run counter to
   important procedural trends designed to
   enhance judicial power to control discovery,
   improve efficiency, and promote settlement in
   the hope of reducing cost and delay. (18)

   [W]hatever the value of disclosure, it should
   not obscure the strong public interest in, and
   policy objectives furthered by, promoting settlement.
   Settlement not only reduces the need
   for further governmental involvement, but
   also reduces the cost of dispute resolution to
   the litigants and helps free valuable judicial
   resources and thereby promotes more efficient
   operation of the courts. Our civil justice system
   could not bear the increased burden that
   would accompany reducing the frequency of
   settlement or delaying the stage in the litigation
   at which settlement is achieved. (19)

Miller's article--and especially his chilled-settlements argument--immediately became a staple of the corporate side of the court-secrecy debate and has remained so for more than a dozen years. The argument is routinely raised in testimony at hearings, in written comments on proposed secrecy restrictions, and in media interviews with pro-secrecy advocates. (20) A recent example of its use is in the debate surrounding a proposal in the U.S. District Court for the District of South Carolina to ban sealed settlements.

Chief Judge Joseph Anderson Jr. began the South Carolina federal court's effort in 2002. As a New York Times reporter described it,

   Judge Anderson was most concerned with the
   selling of secrecy as a commodity, he said in an
   interview. He recalled being told by a plaintiffs
   lawyer that the lawyer had obtained additional
   money for his client in exchange for the
   promise of secrecy. "That's what really lit my
   fuse," the judge said. "It meant that secrecy
   was something bought and sold right under a
   judge's nose." (21)

Anderson wrote a letter to his colleagues urging them to take collective action:

   Here is a rare opportunity for our court to do
   the right thing, and take the lead nationally in
   a time when the Arthur Andersen/Enron/
   Catholic priest controversies are undermining
   public confidence in out institutions and causing
   a growing suspicion of things that are kept
   secret by public bodies.... Some of the early
   Firestone tire cases were settled with court-ordered
   secrecy agreements that kept the Firestone
   tire problem from coming to light until
   many years later.... Arguably, some lives were
   lost because judges signed secrecy agreements
   regarding Firestone tire problems. (22)

Under Anderson's leadership, the court's 10 active judges drafted a simple one-sentence rule that would ban outright the sealing of any settlement agreement filed with the court. They solicited comments on it from the bar and the public and posted the comments on the court's public Web site. (23)

The court received comments from 31 entities: 14 supported the rule change; 13 opposed it; and 4 preferred alternative approaches. In addition to the court's advisory committee, which was asked to review the judges' draft proposal, the writers included seven lawyers who mentioned no affiliation; three who wrote on behalf of plaintiff- or consumer-oriented legal organizations; six who wrote on behalf of, or mentioned affiliations with, defense-oriented legal organizations; three who wrote on behalf of insurance organizations; six legal academics; and five who wrote for nominally nonpartisan legal organizations or nonlegal academic or professional organizations.

All six academics and the advisory committee favored either the proposed amendment or an alternative method of restricting secrecy. The three consumer-oriented legal organizations supported the rule amendment, and the six defense-affiliated writers and all three insurance organizations opposed it. Four of the letters specifically cited Miller's 1991 article.

Unsurprisingly, all three insurance organizations and four of the lawyers affiliated with defense organizations made the chilled-settlements argument, with the president of the South Carolina Defense Trial Attorneys' Association making the broadest predictions of all:

* "[T]he proposed amendment ... may ultimately result in a chilling effect on settlements of civil disputes." (24)

* "[A]n elimination of confidential settlement agreements will serve as a disincentive for settlement in a majority of civil disputes." (25)

Four of the writers who supported restricting secrecy mentioned the chilled-settlements argument but rejected it outright or questioned its premise:

* "Opponents of openness claim that cases wouldn't settle without secrecy. There is no evidence for this proposition.... The amount of settlement may be lower, but only because no premium is paid for silence." (26)

* "Can anyone demonstrate factually that, in states with limits on secrecy in litigation, the settlement rate per capita has decreased significantly since the limits were implemented? ... Can anyone demonstrate factually that, in states with limits on secrecy in litigation, the trial rate per capita has increased significantly since the limits were implemented?" (27)

In the end, South Carolina's federal judges, unswayed by the dire predictions of chilled settlements, adopted their rule.

Writing to colleagues early on, Anderson expressed doubts about the "chilled settlements" threat:

   Judge Anderson told his colleagues that their
   court, at least, had available capacity. He wrote
   that the court had disposed of 3,856 civil cases
   in the previous 12 months, which included
   only 35 cases tried to a verdict. "If the rule
   change I propose were enacted and it did result
   in two or three more jury trials per judge per
   year (which is far from certain)," Judge Anderson
   wrote, "I think we could handle the
   increased workload with little problem." (28)

Does sunshine chill settlements?

Evidence from publicly collected and maintained court statistics undercuts arguments that "sunshine" provisions will chill settlements. The existing evidence will not yet support analysis with scientific rigor, but it suggests strongly that restrictions on secrecy do not make parties less likely to settle cases.

Florida's courts, in particular, provide an opportunity to test the chilled settlements argument against the actual experience of the courts. In 1990, the Florida legislature passed the Sunshine in Litigation Act, requiring courts to scrutinize the subject matter of secrecy requests for any hidden "public hazards." (29) If the change in Florida's regime for handling secrecy requests is to have significant impact--such that it would undermine the policy of encouraging settlement, increase the workload of the courts, and deprive litigants of resolution of their cases before trial--that impact should be evident after 12 years, if good data on case filings and resolutions exist. Fortunately, Florida collects, audits, and publishes detailed caseload data for its trial courts.

The state courts' statistics for July 1986 to June 2000 suggest at least two trends relevant to the secrecy issue. (30)

* Although the per capita number of tort filings varied for each year, it reflected a clear downward trend. Per capita filings for all torts declined substantially over the 14-year period, from 2.76 per 1,000 residents to 2.23.

* The per capita number of case dispositions stayed close to the number of filings and showed a similar downward trend, from 3.01 to 2.16 per 1,000 residents. (31)

These data are inconsistent with the chilled-settlements argument. They show that tort dispositions have tracked the state's declining filing rate. Were the chilled-settlements argument valid, one would expect to see noticeably fewer dispositions.

Florida's sunshine law has now been in effect for nearly 13 years. Trial lawyers for both sides appear to have simply accepted it and moved on with business. (32)

Where are the chilled settlements?

Lawyers who support keeping courts and judicial records open need to move beyond hypotheses and partial court statistics to assist policy-makers in future decisions on whether to restrict secrecy in the courts. The bar needs to ask--and get answers to--a straightforward question: Where are the settlements that have been " chilled" by secrecy restrictions?

Who knows of a case in which a settlement was offered on condition of a secrecy agreement, but was withdrawn when secrecy was rejected--either by a party or by the court--and, as a result, the case had to be tried? I believe there are, in reality, few such cases--far too few to justify widespread use of secrecy in court proceedings.

Increasingly, lawyers who oppose secret settlements have found opportunities to test this theory directly with judges. In his letter to the federal judges in South Carolina, Richard Zitrin--a San Francisco attorney and adjunct professor at the University of San Francisco School of Law, where he is the director of the Center for Applied Legal Ethics--wrote, "In three judicial seminars I have been privileged to speak at on this subject, I did not find a single judge who believed cases would not settle." (33)

A Roscoe Pound Institute educational program for the Hawaii judiciary in January offered a similar opportunity for inquiry. The audience included more than 50 of the state's 70-odd judges. After hearing a presentation by Professor Dore and comments by panelists, the judges were asked if they could recall even one case in which a defendant requested secrecy but either the plaintiff or the court rejected it, and the case had to go to trial. None of the judges acknowledged having seen such a case.

I ask any attorney or judge who knows of such a case to write to me (34) Responses from defense trial lawyers will be especially important, and welcome. This is the opportunity for lawyers of good will from all sides to answer this obstructive question.

From speculation to sophistry 

In the early 1990s, a few courts and legislatures began to reconsider the routine granting of requests to keep litigation information secret. The chilled-settlements argument they heard from defense lawyers and tort "reform" publicists clearly had some appeal to legitimate concerns about the backlogged court dockets and the possibility of increased caseloads.

But secrecy proponents offered no evidence of what would actually happen in the courts if secrecy were restricted. The chilled-settlements argument was a prediction that could neither be proved by them nor disproved by advocates of greater openness. It represented, at most, a possibility.

During the decade that followed, a number of courts have operated under the more open regimes that were opposed by business interests, and evidence has emerged that contradicts the argument:

* court statistics that indicate no falloff in case dispositions under more open procedures

* the absence of anecdotal reports by judges and lawyers of cases that had to be tried after secrecy was refused

* the argument's rejection by ever more courts that opt for more open practices

* perhaps most telling, the continuing failure of secrecy proponents to offer evidence to back up their claims. Yet secrecy proponents still make the chilled-settlements argument.

There has never been a good basis for the chilled-settlements argument. It appears, in fact, to be no more than a shibboleth intended to discourage judges from running more open courts, and has come to resemble other more dire but baseless--and frequently debunked--claims made by tort "reform" supporters. (35)

The presumption of openness is a hallmark of American justice. Several courts have concluded that the policy of encouraging settlement of disputes is not the end of discussion but only one element to consider when they are asked to close their records.

It is fair, finally, to place the burden of proof of the chilled-settlements argument squarely on the opponents of sunshine. Defense lawyers know whether sunshine measures have chilled settlements or not, because they are their settlements. But after more than a decade of debating and observing the existing antisecrecy measures, the defense side and its clients have yet to come forward with any evidence to prove that their argument is valid. I don't believe they ever will.

Notes

(1.) See, e.g., Daniel J. Wakin, Secrecy over Abusive Priests Comes Back to Haunt Church, N.Y. TIMES, Mar. 12, 2002, at A1; U.S. CONFERENCE OF CATHOLIC BISHOPS, AD HOC COMM. ON SEXUAL ABUSE, CHARTER FOR THE PROTECTION OF CHILDREN AND YOUNG PEOPLE (rev. ed. 2002), available at www.usccb.org/bishops/charter.htm (last visited Apr. 28, 2003) (acknowledging past uses of secrecy agreements and committing themselves to not using them in the future).

(2.) See, e.g., James V. Grimaldi & Carrie Johnson, Factory Linked to Bad Tires, WASH. POST, Sept. 28, 2000, at E1; Richmond Eustis, Firestone Fails to Keep GA Wreck File Sealed, FULTON COUNTY DAILY REP., Sept. 29, 2000, at 1.

(3.) See, e.g., E. Marla Felcher, Safety Secrets Keep Consumers in the Dark, TRIAL, Apr. 2001, at 40. See also E. MARLA FELCHER, IT'S NO ACCIDENT: HOW CORPORATIONS SELL DANGEROUS BABY PRODUCTS (2001).

(4.) See Russ Herman, No More Dirty Secrets in the Courts, ATLA ADVOC., Oct. 1989, at 4; Ass'n of Trial Lawyers of Am., Bd. of Governors, Resolution on Secrecy: Protective Orders, May 6, 1989, available at www.atla.org/secrecy/data/BOG.aspx; SOC'Y OF PROF'L JOURNALISTS & ASS'N OF TRIAL LAWYERS OF AM., KEEPING SECRETS: JUSTICE ON TRIAL (Conf. Rep. 1990).

(5.) This article makes no attempt to suggest what attorneys tan and should do when, and if, a settlement is offered with a secrecy "string" attached to it. Ample advice on appropriate attorney responses has been offered in TRIAL and other publications. See, e.g., Francis H. Hare Jr. & James L. Gilbert, Products Liability--Resisting Confidentiality Orders, TRIAL, Oct. 1990, at 50; James L. Gilbert et al., Negotiation and Settlement: The Price of Silence, TRIAL, June 1994, at 17; Frances Komoroske, Should You Keep Settlements Secret? TRIAL June 1999, at 55.

(6.) Twenty-one states have provisions related in some manner to secrecy, whether through legislation or court rules: Arkansas, Arizona, California, Delaware, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Oregon, South Carolina, Texas, Virginia, and Washington.

(7.) See Editorial, Ending Legal Secrecy, N.Y. TIMES, Sept. 5, 2002, at A22; Editorial, Attacking Legal Secrecy, CHI. TRIB., Sept. 29, 2002, at 10; Editorial, Making Settlements Public, ARIZ. DAILY STAR, Nov. 18, 2002, at B4.

(8.) N.Y. State Bar Ass'n Comm. on Prof'l Ethics, Formal Op. 730 (July 27, 2000), DR 2-108(B), 4-101, available at www.nysba.org/Content/NavigationMenu/ Attorney_Resources/Ethics_Opinions/Committee_on _Professional_Ethics_Opinion_730.htm (ruling that, under DR 2-108(B) and 4-101, attorney may not enter into settlement agreement that restricts attorney's right to practice law by prohibiting future representation of clients in cases where attorney might use information not protected as a confidence or secret under code of civil procedure but nevertheless covered by terms of settlement agreement).

(9.) ARIZ. R. CIV. P. 26(c)(2) (effective Dec. 1, 2002).

(10.) S.C.R. CIV. P. 41.1 (enacted Jan. 31, 2003), available at www.judicial.state.sc.us/whatsnew/ Rule41.1sealing.htm (visited Apr. 28, 2003).

(11.) S.C.D. LOCAL R. 5.03 (C) ("Filing Documents Under Seal") (providing that "no settlement agreement filed with the court shall be sealed pursuant to the terms of this rule") (effective Nov. 1, 2002), available at www.scd.uscourts.gov/Rules/Mar2003/CV/ CH5.pdf (visited Apr. 28, 2003).

(12.) Laurie Kratky Dore, Secrecy by Consent: The Use and Limits of Confidentiality in the Pursuit of Settlement, 74 NOTRE DAME L. REV. 283, 304-05 (1999) (hereinafter "Dore 1999"); see Laurie Kratky Dore, Presentation at 2000 Roscoe Pound Institute Forum for State Court Judges: Secrecy Practices in the Courts, The Confidentiality Debate and the Push to Regulate Secrecy in Civil Litigation (July 29, 2000), available at www.roscoepound.org/new/00kratky.pdf (visited Apr. 28, 2003); Laurie Kratky Dore, The Confidentiality Debate, TRIAL, Oct. 2000, at 18.

(13.) Dore 1999, supra note 12, at n.93.

(14.) Id. at 286.

(15.) Id.

(16.) See, e.g., C.L. v. Edson, 409 N.W.2d 417, 423 (Wis. Ct. App. 1987); Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 346 (3d Cir. 1986); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994); United States v. Kentucky Utils. Co., 124 F.R.D. 146, 153 (E.D. Ky. 1989), rev'd, 927 F.2d 252 (6th Cit. 1991); cf. Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571 n.4 (11th Cit. 1985) (per curiam).

(17.) Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 HARV. L. REV. 427 (1991). Millet asserts inaccurately that ATLA organized a campaign to induce courts and legislatures to ban many forms of secrecy and made it the association's highest priority (Id. at 441-45).

(18.) Id. at 431-32.

(19.) Id. al. 486 (footnotes omitted). David Luban made a detailed critique of Miller's article in Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619 (1995).

(20.) See Diana Digges, Confidential Settlements Under Fire in 13 States, LAW. WKLY. USA, Apr. 30, 2001, at B1, available at www.atla.org/secrecy/data/ confid.pdf (visited Apr. 28, 2003).

(21.) Adam Liptak, Judges Seek to Ban Secret Settlements in South Carolina, N.Y. TIMES, Sept. 2, 2002, at A1, A13.

(22.) Id.

(23.) S.C.D. LOCAL R. 5.03 (C), supra note 11. The notice of adoption of the amendment is published at www.scd.uscourts.gov/notices/LR503.pdf (visited Apr. 28, 2003). The comments are available in toto at www.scd.uscourts.gov/notices/COMLR503.pdf (visited Apr. 28, 2003) (hereinafter "Comments").

(24.) Letter from H. Mills Gallivan, President, South Carolina Defense Trial Attorneys' Association, to Larry W. Propes, Clerk of the Court, U.S. District Court for the District of South Carolina (Sept. 26, 2002); Comments, supra note 23, at 89.

(25.) Letter from H. Mills Gallivan, President, South Carolina Defense Trial Attorneys' Association, to Larry W. Propes, Clerk of the Court, U.S. District Court for the District of South Carolina (July 23, 2002); Comments, supra note 23, at 92 (emphasis added).

(26.) Letter from Richard A. Zitrin, Director, Center for Applied Legal Ethics, University of San Francisco School of Law, to Larry W. Propes, Clerk of the Court, U.S. District Court for the District of South Carolina (Sept. 26, 2002), available at www.scd.us.courts. gov/notices/COMLR503.pdf; Comments, supra note 23, at 51. See, also, Richard A. Zitrin. The Case Against Secret Settlements (Or, What You Don't Know Can Hurt You), 2 J. INST. STUDY LEGAL ETHICS 115 (1999); Richard A. Zitrin, Presentation at 2000 Roscoe Pound Institute Forum for State Court Judges, Open Courts with Sealed Files: Secrecy's Impact on American Justice What Judges Can and Should Do About Secrecy in the Courts (July 29, 2000), available at www.roscoepound.org/new/00zitrin.pdf (last visited Apr. 28, 2003); Richard A. Zitrin, Overcoming Secrecy with Judicial Power, TRIAL, Nov. 2000, at 74.

(27.) Letter from Mary E. Alexander, President, Association of Trial Lawyers of America, to Larry W. Propes, Clerk of the Court, U.S. District Court for the District of South Carolina (Sept. 24, 2002), available at www.scd.us.courts.gov/notices/COMLR503.pdf; Comments, supra note 23, at 14.

(28.) Liptak, supra note 21, at A13.

(29.) FLA. STAT. ch. 69.081 (2002); see Ray Shaw, Sunshine in Litigation, FLA. B.J., Jan. 2000, at 63.

(30.) Florida State Courts, Office of the State Courts Administrator, Summary Reporting System (on file with author), available at www.flcourts.org (last visited Apr. 28, 2003). Per capita rates were calculated using population data from the Statistical Abstract of the United States, published by the U.S. Census Bureau. The SRS data on tort filings and dispositions include four tort categories: professional malpractice, products liability, auto negligence, and "other negligence." Per capita case filings varied according to type of litigation, and the incidence of requests for secrecy is also likely to vary by subject matter, depending on the stakes involved. For example, trends in filings (1.61 to 1.09) and dispositions (1.80 to 1.16) for auto negligence cases closely track the downward trends for all torts. For other negligence cases, both trends are flatter (0.93 to 0.79 for filings, 1.07 to 0.79 for dispositions) but still noticeably downward. For professional malpractice, the trends are flatter still (0.15 to 0.14 for filings, 0.08 to 0.11 for dispositions). Although the per capita rates for products liability cases fluctuated more than for the other categories, those cases accounted for only 6.25 percent of all tort filings over the 14-year period.

(31.) These data also refute the arguments that a "litigation explosion" necessitated the adoption of broad tort "reform" measures by the Florida legislature in 1999. 1999 Fla. Sess. Law Serv. 99-225 (H.B. 775).

(32.) See Shaw, supra note 29; see also Dan Christensen, Federal Judges Ponder Future of Secret Settlements, MIAMI DAILY BUS. REV., Sept. 11, 2002, at 1.

(33.) See Letter from Zitrin, supra note 26.

(34.) Send responses to [e-mail] or James E. Rooks Jr., Center for Constitutional Litigation, P.C., 1050 31st St., N.W., Washington, DC 20007. Please include the name and telephone number of an attorney or judge involved in the case who can provide additional information, such as the case caption, court in which the case was filed, docket number, and date of last court action.

(35.) See, e.g., STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM ix-x (1995) (noting that many claims made by tort "reform" advocates lack empirical support).

James E. Rooks Jr. is senior policy research counsel with the Center for Constitutional Litigation in Washington, D.C.