Defending Torts: What Should We Know?

This paper considers the state of our knowledge about the process of defending tort claims. A variety of specific topics are covered including relationships among the key actors on the defense side (alleged tortfeasor, insurer, and defense lawyer); the incentives faced by these actors; the resolutions of issues of liability, causation, and damages; different types of claimants; variations among tortfeasors and their insurers; conflicts on the defense side; staff lawyers and in-house counsel; the problem of defending sure losers; and the use of experts by the defense. A brief appendix presents some data on the sociology of defense practice (i.e., the characteristics of lawyers who describe themselves as specialists in personal injury defense).