Too scared to move

It's a cliche to say that America is a litigious country, but once again someone has come into my office with a problem that, quite frankly, would like not have occurred in any other country.

The details of the problem aren't relevant, and shouldn't be disclosed in any event. But here, in such a generic way as to not disclose details but to make my larger point, are the circumstances:

1. A person suffers a catastrophic injury on or near my client's property.
2. Client in no way directly caused it (i.e., act of commission), and Client appears not to have indirectly caused it (i.e., act of omission), though the plaintiff's lawyer is digging to manufacture evidence by which a jury could at least conceive that perhaps something could have been done better by Client that could have prevented the injury from occurring.
3. Client is now in fear of losing his life savings at almost-retirement age, and likely will have to suffer the stress of civil litigation for the next 2-3 years.

It is a clear sign of the distaste our society has for Plaintiff's lawyers when our state's largest association of them changes its name from "The North Carolina Academy of Trial Lawyers" to the more innocuous sounding "North Carolina Advocates for Justice." We all want justice, right? Perhaps they should take one more step and call themselves the "Justice League," or maybe even just "The Superfriends."

While we can (and do) blame all lawyers for our litigious society, I'd point out that there have to be clients to keep lawyers in business, and furthermore, there wouldn't be this business if there weren't a system set up that appears to perpetuate trial litigation. Put together, we have a legal system in which litigious injury claims carry with them a chance of reward that far outweighs the small risk involved in filing them. Until that system is changed, it will only be logical that (1) more claims will be filed than should be; (2) cottage industries are set up simply to propagate the voluminous filing of claims; and (3) people will have to guide their actions not by what is right or best but instead what minimizes their risk and the costs associated with litigation.

Here are, however, a few suggestions for ways in which we could reduce the fear litigation in our society.

1. Make the Plaintiff state his full alleged claims, and then have to pay the Defendant's legal costs if he fails to recover at least half of the amount claimed for damages. This idea attacks two issues at once. First, in North Carolina, negligence plaintiffs are not required to state the amount of their damages, being required only to allege whether the damages are in excess of $10,000 or not. Obviously, this allows Plaintiffs to file claims without providing the Defendants any real idea of the damages they're claiming, or even having to know themselves what their alleged damages are. Furthermore, old ideas of a "loser pays" system neglect the fact that while many Plaintiffs go to trial and actually do receive damages, the damages are often for nowhere near what they really wanted--so though they received something, they in fact were in reality losers. This idea would (1) require the Plaintiff to place his cards on the table by naming concrete damages, and (2)require him to cover the Defendant's costs if what a court awarded him was far less than what he asked. More importantly, however, this requirement would reduce the overstated claims brought by Plaintiffs and their attorneys, by which they allege damages in excess of $10,000, and come to trial with wild figures in the six and seven figures. If you as a Plaintiff are required to specify your damages, and then further can be penalized if your recovery is less than half of what you specified, you, logically, will be more careful not to overstate your perceived damages.

2. Change negligence and liability law from the "common law" system to a "civil law" system. In general, you could find in me no greater standard-bearer for Anglo-Saxon history, culture and its legal system, and I proudly state that the United Kingdom, in the last few hundred years, is one of the main progenitors of democracy and modernization all over the world, and the world is better for English influence. That said, we could perhaps learn a little bit from "civil law" countries. Most English-speaking countries use common law in their courts to determine civil (non-criminal) liability. This system of law is developed, over time, by judges and courts of appeals, based upon case law, as established case by case. While this system is lauded for its flexibility, it has the nasty side effect--in liability cases--to be so gray, so murky, so difficult to pin down, that average citizens simply cannot know whether many of their actions could make them liable or not. The general rule as stated by the courts is whether an action is "reasonable" as determined by a "reasonable person" standard (i.e., would a reasonable person have taken this action or not?). The problem with this standard is it has no set interpretation, except for those made by lawyers to convince juries and judges. And it is fairly easy for attorneys and juries to play Monday morning quarterback, and to determine that, if looking back on an action, there was a better way to do it, then ipso facto the person by failing to do it that better way must have been negligent. There is no easy way for a person to determine whether his actions may bring him liability, other than to read years worth of court cases to determine where liability has been found in the past--and even in this case, that's not foolproof because the common law is constantly evolving, so that what's a rule this year may not be quite the same rule in the next.

By contrast, in a civil law country, these civil rules are determined statutorily, by legislators. While this can, of course, create its own set of inscrutable rules (see, e.g., the IRS code), there is at least a set of rules, written down on paper, that cannot be changed simply because judges or lawyers believe it is time to modify the laws.

In a civil law country, the rules would state very clearly, in black and white, what actions could make you civilly liable. Anything not included in those rules would then be activities that would not bring liability. Wouldn't that be nice?

Furthermore, the statutes could prescribe a set formula for damages in those instances of liability, so that a Defendant accused of negligence by a Plaintiff would very easily understand, by law, what his potential liability would be, instead of it being left in the hands of 12 strangers with no real restraints on your pocketbook.

3. Do not allow a Plaintiff to receive the benefit of punitive damages. In our common law system, there are two basic types of damages that a Plaintiff can receive: compensatory and punitive. Compensatory damages, in theory, compensate the Plaintiff for the loss he has incurred--if someone's negligence totalled your $10,000 car, then your compensatory damages would be $10,000. Punitive damages, however, are meant as a punishment for certain egregious wrongdoing of a Defendant. Perhaps, in certain cases, a Defendant's actions are so egregiously wrong that he should be punished. But if the goal of punitive damages is to punish, why should the Plaintiff then be given those damages? All this does is give a Plaintiff a greater financial incentive to misstate wrongdoing in order to increase his potential payday. Instead, any punitive damages awarded against a Defendant should be paid into the court system, to cover the court costs and minimize taxpayer expenditures. The punitives could only, perhaps, be awarded by a jury so that there is no incentive for judicial officials to award punitives in order to increase their budget coffers. Perhaps there are some times a Defendant should be justly punished--but should a Plaintiff be enriched as a result?

Without major changes in our legal system, future generations will live their lives in paralyzing fear of lawsuits, litigation, and perceived liability. If just a few of these changes were implemented, many of the wrongful incentives currently inherent in the system would vanish, creating a system instead where legitimate wrongs are redressed, but abolishing the low-risk lottery system we currently have in place.