Medical Malpractice reform limits a victim’s ability to recover for their losses in medical accidents. Indeed, the literature has established that the number of claims in states with tort reform has gone down. How do personal injury (PI) plaintiff lawyers deal with the decrease in the demand for their services?
There is some anecdotal evidence that some proportion of them switch to intellectual property (IP) law. Using data from Lex Machina and the Database of State Tort Law Reforms (“DSTLR 4th ”), we find more systematic evidence that tort reform significantly and substantially increases copyright and patent filings in U.S. district courts while having no significant effect on trade secrets and trademark filings in those courts. One potential explanation for this different apparent result for trade secret and trademark filings is that, to the extent tort reform produced an increase in trademark or trade secret filings, that increase was concentrated in state courts (which Lex Machina does not cover), rather than federal district courts that have exclusive jurisdiction over patents and copyright cases. Alternatively, it could be that PI attorneys moving into other areas of practice are truly more likely to gravitate toward patent and copyright litigation, rather than trademark or trade secret litigation, perhaps because patent and copyright litigation offers more opportunities for lucrative suits brought by non-incumbent industry players (e.g., independent inventors or startup firms) who might be most likely to seek the services of former PI attorneys. Further research, including study of IP case filings in state courts, might help suggest which of these hypotheses provides a better explanation.
Ronen Avraham & John M. Golden, From PI to IP: Yet Another Unexpected Effect of Tort Reform. University of Texas School of Law, Law & Economics Research Paper Series No 211, (2012)