Chapter Topics

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Chapter Topics
The Disputing Pyramid Resolution Without Filing a
Lawsuit The Litigation Explosion Argument Tort
Reform The Complex World of Torts Alternative
Dispute Resolution
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The Disputing Pyramid

• litigation signals the arrival of disputes that
  happened elsewherelawsuits/disputes are a
  process
• the vast majority of disputes will never result
  in a lawsuit 50 out of 1000
• the disputing process has a number of stages 1)
  grieving, 2) claiming, 3) disputing, 4) hiring a
  lawyer, and 5) deciding to sue

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Grieving

• all civil disputes start as grievances
• the belief by one party that it has been
  wronged by someone else
• grievances are common events, nearly 40 of
  households experience a serious grievance each
  year
• most grievances will not become lawsuits they
  are lumped

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Claiming

• communicating a sense of entitlement to the
  party perceived to be responsible
• about 70 of grievances will turn into claims
• claiming varies by type of grievancee.g.
  property cases often lead to claims
• other responses include lumping itjust
  forgetting about it or flight/avoidance

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Disputing

• if the other party accepts responsibility and
  agrees to redress claim then there is no dispute
• disputing occurs when a claim is rejected, 2/3
  of claims are rejected
• tort claims are least likely to be rejected
• rejection does not necessarily lead to
  courtalternative means of resolving the case may
  be pursued

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Hiring a Lawyer

• less than 25 of those suffering a grievance
  will hire a lawyer
• post divorce and tort claims are most likely to
  hire a lawyer
• lawyers are important part of disputing
  pyramidthey define the law, and explain how the
  system works
• hiring a lawyer does not necessarily lead to
  courtlawyers work to settle

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Lawyers and Clients

• lawyers engage in law talk with
  clientsexplaining the law
• sometimes there is conflictas clients tell
  lawyers about problems, but lawyers tell clients
  about the law
• lawyers focus on the business of settling
  disputes

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Deciding to Sue

• suing is a last resort, when other methods of
  dispute resolution fail
• lawyers are very important in the decision to
  sue
• non-lawyers often misunderstand the law
• civil court is not like criminal court
• compensates but does not punish

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Deciding to Sue

• is suing worth the money, time , effort, hassle,
  etc.
• litigation creates stress between the parties
  (who often know each other)
• the potential of losing causes many lawyers to
  urge their clients to settleboth

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Resolution Without Filing a Lawsuit

• only 50 out of 1,000 disputes will result in a
  lawsuit
• filing a lawsuit does not necessarily result in
  a trial
• the vast majority of cases are resolved before a
  lawsuit is filed
• courts are an important threatdispute
  resolution happens under the shadow of the law

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The Litigation Explosion Argument

• many American believe we are suffering from a
  litigation explosion
• high profile cases encourage this view
  (McDonalds coffee spill)
• trends increasing federal filings, growing
  legal profession, publicity for extravagant
  filings
• but not all cases filed go to court, all
  lawyers do not practice law, more publicity

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Probing Caseload Growth

• Marc Galanter is a critic of the litigation
  explosion argument
• some studies actually show that litigation rates
  now are lower than in the early 19th century
• much of the increase corresponds to an
  increasing population
• case filings have increased but not exploded

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Shifts in Business

• the kinds of cases is also an important feature
  of the civil court caseload
• early 20th centurymarket related cases
  dominated (property and contract cases)
• today non-market cases predominate (automobile
  accidents, child custody, divorce)
• more lawsuits challenging governmental action

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Public Perceptions of the Litigation Explosion

• much of the public furor is over what not how
  much of it courts are doing
• disadvantaged groups often use the legal system
  to redress grievances
• some argue this had led to a legalization or
  judicialization of disputes
• policy lawsuits are particularly contentious

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Public Perceptions

• the public largely believes that there is a
  litigation explosion
• views are nuanced, factors such as race, class,
  and community norms play a role in determining
  views
• some individuals are seen as quick to sue,
  while others see these individuals as pursuing
  their legal rights

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Public Perceptions

• a frivolous lawsuit is in the eye of the
  beholder
• political ideology is a helpful guide to views
  about litigationwith political liberals favoring
  the use of the legal system to balance competing
  interestsand conservatives opposing such use
• many countries are more hostile to lawsuits than
  the U.S.

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Tort Reform

• business groups charge greedy lawyers with
  driving up the cost of business, lawyers counter
  that businesses try to cheat citizens out of
  their rights to sue
• lawyer bashing is common and trial lawyers are a
  popular target in elections
• tort reform debate often follows patterns of
  litigation

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Tort Tales

• moralistic parables that drive home the point
  that something needs to be done about a legal
  system that is out of control
• are short, therefore easy to retell
• emphasize the stupidity of the victim
• the defendant is always blameless
• a focus on the greedy plaintiff

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Tort Tales

• Haltom and McCann argue that tort tales distort
  reality
• efforts to refute the litigation explosion
  argument are futile because tort tales resonate
  with our moralistic culture and drown out the
  facts
• they reinforce the greedy lawyer and the legal
  system run amok theory

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State Level Tort Reform

• Tort reform has happened in many states
• 29 states have modified the law for joint and
  several liability
• 31 states have enacted punitive damage reform
• reflects a tug-of-war between trial lawyers and
  insurance companies
• considerable action in the states

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National Tort Reform

• in 1990s tort reform emerged as a potent
  national issue with clear partisan lines
• Republicans campaigned on aggressive changes to
  the U.S. civil justice system focused on reducing
  the number of lawsuits and size of punitive
  damages
• 2005 President Bush signed the Class Action
  Fairness Actwhich will direct more class action
  suits to federal court

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National Tort Reform

• national reforms on medical malpractice and
  limits on punitive damages are still pending
  after more than 10 years of efforts by
  Republicans
• some conservatives argue that states, not the
  federal government, should determine the
  character of the civil justice system and want
  the federal government to avoid being involved

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The Complex World of Torts

• there are many variations of torts
• Routine Tort Cases
• relatively minor personal injury cases (aka
  slips and falls), automobile accidents are
  common
• represent 77 of all tort filings
• median verdict in an auto case is 16,000

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• Routine Tort Cases
• but the media mostly reports on verdicts that
  are 10 to 20 times greater than the median
• public thinks million dollar verdicts are common
• this leads to clients often believing their
  injuries are worth far more than lawyers

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• High Stakes Litigation
• cases in which a plaintiff sues for a large
  amount of damages
• examples are product liability and medical
  malpractice
• account for roughly 10 of tort filings
• many lawyers avoid these cases because they are
  expensive to litigate
• plaintiffs win 27 of medical malpractice trials
  (288,576)

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• Mass Torts
• associated with exposure to toxic substances or
  pharmaceutical products
• examples asbestos, breast implants, Dalkon
  Shield (birth control device), fen-phen (dietary
  supplement)
• thousands of plaintiffs
• causation is difficult to establishclaims are
  for latent injuries
• large amounts of money involved

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Alternative Dispute Resolution

• Alternative dispute resolution less adversarial
  means of settling disputes that may not involve a
  court (ADR)
• ADR emphasizes
• mediation rather than winner-take-all
• increasing accessibility to justice
• improving efficiency, reducing court delay

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Community Courts

• process a range of minor civil and criminal
  matters through non-judicial techniques
• focus on mediation not adjudication
• sometimes called neighborhood justice centers
• focus on resolving dispute in agreeable terms
  between the parties

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Court-Annexed Arbitration

• the most frequent ADR is court-annexed
  arbitration
• goal is to provide speedier, less expensive
  adjudication
• in some places judges can require arbitration in
  civil cases below a set dollar amount
• arbitrator is usually a local attorney

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Court-Annexed Arbitration

• hearings are held, arbitrator makes a decision
• if both parties agree the case is settled, if
  they disagree it goes to court for a trial de
  novo
• program vary substantially
• arbitration appears to work (reducing delay, cut
  costs, etc.)
• litigants appear satisfied

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Conclusion

• the civil justice system has always been a focus
  of hot debate
• fact (litigation type and rates) is difficult to
  distinguish from fiction (tort tales)
• there is disagreement about who is responsible
  for cases greedy lawyers, or unscrupulous
  business interests
• states are active in the debate