Chapter Topics

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

3. The Disputing Pyramid • litigation signals the arrival of disputes that happened elsewhere—lawsuits/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

4. 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”

5. 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 grievance—e.g. property cases often lead to claims • other responses include “lumping it”—just forgetting about it or “flight/avoidance”

6. 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 court—alternative means of resolving the case may be pursued

7. 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 pyramid—they define the law, and explain how the system works • hiring a lawyer does not necessarily lead to court—lawyers work to settle

8. Lawyers and Clients • lawyers engage in “law talk” with clients—explaining the law • sometimes there is conflict—as clients tell lawyers about problems, but lawyers tell clients about the law • lawyers focus on the business of settling disputes

9. 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

10. 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 settle—both

11. 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 threat—dispute resolution happens under the “shadow of the law”

12. The Litigation Explosion Argument • many American believe we are suffering from a litigation explosion • high profile cases encourage this view (McDonald’s 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

13. 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”

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

15. 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

16. 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”

17. Public Perceptions • a “frivolous lawsuit” is in the eye of the beholder • political ideology is a helpful guide to views about litigation—with political liberals favoring the use of the legal system to balance competing interests—and conservatives opposing such use • many countries are more hostile to lawsuits than the U.S.

18. 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

19. 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

20. 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

21. 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

22. 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 Act—which will direct more class action suits to federal court

23. 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

24. 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

25. 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

26. 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)

27. 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 establish—claims are for latent injuries • large amounts of money involved

28. 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

29. 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

30. 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

31. 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

32. 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