Chapter Topics
The Disputing Pyramid
Resolution Without Filing a Lawsuit
The Litigation Explosion Argument
Tort Reform
The Complex World of Torts
Alternative Dispute Resolution
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
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”
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”
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
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
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
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
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
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”
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
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”
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
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
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”
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.
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
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
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
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
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
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
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
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
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)
Mass Torts
• associated with exposure to toxic
substances or pharmaceutical products
• examples: asbestos, breast implants,
Dalkon Shield (birth control device), fenphen (dietary supplement)
• thousands of plaintiffs
• causation is difficult to establish—
claims are for latent injuries
• large amounts of money involved
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
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
Court-Annexed Arbitration
• the most frequent ADR is courtannexed 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
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
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