Before and After #1

I tend to be a fairly opinionated person. I know this does not surprise anyone, but I at least attempt to keep an open mind about things for which I have a strong opinion. Prior to coming to law school, I had many opinions about various areas of law, and today many of those opinions are undergoing changes. In other words, as I learn more, and gain a greater understanding of both legal rules and the reasons for them, I am slowly changing some of my pre-conceived notions regarding certain areas of law.

I used to have a fairly unflattering opinion of Tort law in general, agreeing with commonly held notions that many tort suits are frivolous, and many damage awards are far out of proportion with the kind of harm suffered. I came to law school believing that I wanted to stay as far away from tort law (practice), and would only study it because I have to. While I still don't believe I will practice tort law, most of my opinions about the field have undergone a dramatic change.

The simplest definition of "tort" is "a civil wrong". The goal of tort law is to compensate people who, through no fault (or less fault) of their own, have been harmed by intentional acts, negligent acts, defective products, etc. The purpose is generally two-fold - to compensate victims (who have suffered harm) and to deter "bad behavior" (or encourage "good behavior"). [note: there are other goals of tort law, and of course other rationale too. I'm trying to keep this straight-forward]

Ultimately these are very worthy goals, and in fact I tend to think most people would agree with them. Where most people have issues with torts is when the system seems to favor plaintiffs over defendants - that is, the balance is tipped too far to one side and is, in many instances, unfair. It is easy to have this opinion when we read stories about massive damages awarded for what appear to be frivolous (or perhaps "iffy") causes of action. The public reaction years ago to the award a woman won against McDonalds when she burned her legs on hot coffee is illustrative of this point - wasn't that her fault? Don't people realize that coffee is hot? The answer, unfortunately, is not so simple, and the trap most of us fall into (including me) is making judgments without knowing all of the facts.

Most people, once they learn all of the facts of the McDonald's case, tend to agree that it was a good verdict.

But not having all the facts of a particular case is not really the problem. Most people are rational enough to understand that when they make snap judgments, those opinions are subject to change once they hear 'the rest of the story'. Remember, these are people who sit on juries and award these verdicts (I would posit that many people who believe tort law is out of control have sat on juries and handed out big awards - these opinions are easy to have while we're armchair judges). The issue for me is really one of philosophy - that is, should we be compensating victims of accidents? should we hold someone responsible - sometimes someone who wasn't even directly involved in the accident - for these accidents? And how much should we make these people pay? Is there such a thing as too much?

There are no easy answers to these questions. For me, however, much of what I have learned about tort law is very encouraging and (although imperfect) the system has an overall goal of fairness to all parties to a law suit. Perhaps the most important element of this is the fact that these causes of action have to convince a jury of our peers. The jury system is perhaps the most ingenious, most effective means of weeding out the unworthy suits, and it works famously. One thing I learned early that I did not know is that an appeals court cannot overturn a jury verdict - they may only overturn decisions made by the judge (for example, to allow or exclude a piece of evidence).

But before cases even get to trial, there are procedural safeguards that protect the 'system' from hearing cases that have no merit. Probably the most obvious one is the fact that most cases can be (and typically are) settled without even going to trial. In fact, this is usually the best way of achieving a balance when it comes to compensating victims for harms (settlements are much faster than trials, and ultimately much cheaper). But if a case has no merit, well there are rules that allow defense attorneys to move to dismiss case before anyone even begins gathering evidence, and even rules that punish lawyers for bringing a frivolous lawsuit (anyone who has read A Civil Action may remember the rule 11 part of the book). The system takes these procedures very seriously for a very obvious reason - they are busy and the last thing courts need are frivolous suits clogging up their dockets. Yes each person has a right to his or her "day in court", however it is up to them to state a claim for which they can seek compensation, and our system is very good at weeding out those who do not do so.

Ultimately this means that our system at least attempts to allow people who should be compensated to recover, and those who should not typically do not. When mistakes are made, we have the appellate system and they take their job of correcting errors very seriously. The law is in a constant state of flux, but the ultimate goals, ultimately, are a good thing.

Stay tuned, I know this is broad and vague, I'll get more specific soon.