The Journal of the American Medical Association® (JAMA) and the New England Journal of Medicine (NEJM) typically offer a statistical analysis of the frequency and outcome of particular medical conditions. The juridical corollary published in law review articles is a discussion of how fact patterns are handled by courts. In other words, JAMA and NEJM study the way medical cases are resolved through treatment utilizing drugs and equipment; while law review articles contextualize a court ruling or majority view by applying concepts of jurisdiction, standing and precedent using rules, statutes and prior decisions.
What if trends in case law, in addition to being driven by their traditional criteria, were fine-tuned with statistics just as in the field of health care? The resulting benefits would be enormous. If as much case-specific data were publicly available in law as in medicine, we might perform these studies:
1. Compare the relative percentage of a marital estate received by divorcing parties according to litigation cost, fault or no-fault grounds, size of the marital estate, and voluntary or mandatory mediation.
2. Graph the incidence of divorce across populations according to race, religion, previous marriage, pre-marital and marital counseling, education, length of marriage, number of children, grounds for divorce, and self-reported factors such as addiction, mental illness and financial stress.
3. Plot the costs and benefits of business litigation according to out-sourcing, paralegal utilization, E-discovery, law firm size, amount in controversy, experience of counsel, total attorney fees, hourly rates and prevailing party.
Certainly, detailed litigation statistics are available and a considerable body of analysis is already being published. But so much more would be possible if courts took a page from the medical journals and gathered additional facts from litigants. Why not make this a prerequisite to utilizing the courts?
In Virginia family cases, for example, it would be a simple matter to lengthen the “Vital Statistics” VS-4 that collects such things as birth dates and the number of prior marriages. This history – properly coded and stripped of personal identifiers — would be invaluable to legislators, judges, lawyers — and health care professionals.
Litigation trends may be “nudged” by incentives and taxes to affect the quantity and type of court cases while reducing overall litigation cost. With time, it should be possible to subtly influence and improve our system of justice in much the same way that the Patient Protection and Affordable Care Act is expected to streamline the field of medicine.
 Nudge, Improving Decisions About Health, Wealth and Happiness; by Richard H. Thaler and Cass R. Sunstein, © 2009 Penguin Books.