LITIGATION
Criticisms and Defenses of the Civil Justice and Tort System
criticism depends largely on frivolous, high-profile cases, which don’t represent the whole of the justice system ” be careful to rely on such cases only
Croley’s “legal system isn’t available to enough people ” it’s relatively inaccessible to the middle class
Criticism
Response
Excessive damage awards – defendant’s are being “punished” instead of just compensating the victim for actual injuries suffered
· there are caps to damages
· tort damages are relatively low compared to the injury
· medical malpractice is actually under-litigated
· victims of tort injuries who recover the most = those who suffer small injuries, and those who suffer most serious injuries
Tort damages lead to high (inefficiently high) health insurance premiums
Withdrawal of certain goods and services from the marketplace (OB-Gyns) – also
· medical malpractice is actually under-litigated
Pricing goods out of the market (health insurance)
· true that some goods are more expensive because of law suits (health insurance) BUT Croley’s “law of conservation of accident costs” – costs don’t disappear, they just get reallocated
· if jury verdict indicates actual risk of products, then particular products will be more expensive (chain saws, birth control) – it’s not a random sample of products that are affected
Lawyers get a disproportionate proportion of the damage awards
Frivolous Lawsuits
· lawyers have no economic incentive for frivolous lawsuits
· not ethical to bring frivolous lawsuits (Rule 11)
· lawyers can face state ethics boards, sanctions, criminal liability
· one problem faced by lawyers is that doctors don’t testify against other doctors
Leads to an overly litigious society (people recognize as injuries things they never would have sued for before)
· part of the litigiousness is related to the fact the US has so much localized control
Taxes are higher to support the litigation
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People with good claims have to wait longer because of bad claims
·
If state loses, everyone has to pay the damages award
1940 15% of cases were dropped
By 1990, only 4.3% of cases were actually tried
Why are more cases determined outside of trial?
norms against trial
judges intervene more often than they used to
federal rules facilitate trial ” motions have replaced much of trial activity
some feel adoption of the rules discourages trials
the criminal justice system seemingly “clogs” court dockets
Time Periods
time periods for criminal and civil cases are basically the same
o 40% of cases last 1 day
o 19% last 2 days
o 12% last 3 days
o 21% of civil and 19% of criminal last 4-9 days
o 3% of both 10-19 days
o .7% of civil and 1.2% of criminal last > 20 days
Settlement
over a 50 year period, 1/3 of cases were settled
about 2/3 of cases resolved by the court
1990 ” 11% of 2/3 are trial
1990 ” 70% resolved by pre-trial motion
1940 ” 40% resolved by pre-trial motion
Lawyer Compensation
Contingency Fees
attorney recovers a percentage of what the plaintiff recovers
if the plaintiff recovers nothing, the attorney doesn’t get paid
attorneys who work on a contingent fee basis must charge a higher fee than those work on a noncontingent fee basis
