What Types of Cases Drive Litigation?

On Halloween, 2017, it’s appropriate to revisit the recent survey by a prominent law firm, Norton Rose Fulbright (Norton Rose). Earlier this month, Norton Rose published its 2017 Litigation Trends Annual Survey: Perspectives from Corporate Counsel (2017 Norton Rose Survey).

In particular, the types of litigation described by the respondents as “most concerning” were reported as being regulatory actions, class actions and environmental disputes.

On page 3, the “most numerous disputes” were in the overall categories of Contracts and Labor.

Those were categories I recognized from the federal Civil Cover Sheet, and I realized that I had learned enough about PACER to be more specific.

Let’s start with the Civil Cover Sheet. You’ll see immediately that three categories are pertinent: Contracts, Civil Rights, and Labor. While Contracts and Labor are self-explanatory, the reason I include Civil Rights is that there are two sub-categories pertaining to “Employment.”

Here’s the current Civil Cover Sheet, revised only recently in June of 2017. Note that Contract is a major heading in the upper left hand corner. You’ll find Civil Rights in the middle left area. Labor is to the middle right.

Note, in particular, that there are sub-categories under each heading, and that there are numbers just to the left of each sub-category name. These are the Nature of Suit or NOS codes. When the federal judiciary designed PACER, for statistical purposes, an NOS code was associated to each category.

When attorneys file complaints, they must sign the Civil Cover Sheet and choose the sub-category that best reflects the nature of the action, regarding of how many Claims are stated in the complaint.

In particular, Section IV, “NATURE OF SUIT,” instructs them to “Place an ‘X’ in One Box Only.” 

Now, as a data-driven former attorney, my question was this: Which sub-categories (and NOS codes) under Contracts and Labor are chosen by the attorneys most?

If I wanted to prevent litigation in these sub-categories, which sub-categories deserved attention?

I went to PACER (https://www.pacer.gov) and decided to report the number of cases in each of the sub-categories. After logging on, I opened the PACER Case Locator and, towards the top I saw Case Search at the top and to the right, “Basic Search.” For any date range, this is not the place to be. I clicked on “Basic Search” and saw the Date Filed and Date Closed fields.

(Oddly enough, “Basic Search” is a clickable button, but if you click on it, PACER switches to “Advanced Search,” and the Date Filed and Date Closed fields disappear.)

I decided to put the Norton Rose Survey in context, and decided to use the Date Filed “start date” and “end date” in the proper format for the years 2014, 2015 and 2016.

(For 2014 and the other years, the proper PACER format is 01/01/2014 and 12/31/2014.)

Then I had to use the NOS codes for Contracts and Labor and go year by year. What follows is a spreadsheet of the results.

(Across from PACER, by “cv” I mean “civil” for Case Type, as in 1:2014-cv-0003. PACER allows a user of its Filter to make this and other sorting selections.)   

Under Contract, two sub-categories stand out: Insurance and Other.

Under Civil Rights, the stand-out is Jobs/Employment. (I use both terms because, for the same NOS code of 442, PACER uses “Jobs” and the Civil Cover Sheet uses “Employment.”) The obvious translation for this NOS 442 sub-category is “employment discrimination.”

Under Labor, the clear “winners” are Fair Standards and E.R.I.S.A.

There you have it. Or, to put it another way, now you know more.