Sunday, April 15, 2018

The Social Totem Pole vs. the Magic Wand

By Daniel Jackman

In the study of torts, we read all of these interesting cases where people’s wrong are righted through an equalization of the justice system. It makes me get a sense that there is actual hope of fairness for the little guy when things go wrong, then I read David Engel’s book The Myth of the Litigious Society. As I reflect upon all the different quirky stories and depressing theories, one thing from the book remained a thorn in my mind, irritating and obviously true. The fact that the little guy in society never really stands a fair shot in the one opportunity that may present itself to legitimately sue. Engel discusses this when he references how “[t]ort law is unique in this regard, involving claims by persons lower on the social totem pole against defendants who are higher up” David Engel, The Myth of the Litigious Society 102 (2016). It makes you wonder why so much of our system tries to represent itself as being for the common man, equal on all fronts, when, in reality, that may not be the case. Even worse, “[m]oreover, as ‘repeat players,’ potential defendants are more inclined to play the long game, anticipating future disputes in ways that one-shotters cannot, in order to strategize in advance for favorable rules” Id. at 102. It does, however, make me feel as if schools such as UMass Law play an even more important role in taking the side of the disadvantaged, taking the side of those people who may be lower on that “social totem pole.”

Before I read David Engel’s book, I had my own conceptions about why people don’t sue. I believed that suing was simply too expensive unless you are one of those large corporations or millionaires who has a firm on retainer. Granted, he does address that as a factor early in the first chapter, along with other potential causes, but I never really considered the mental portion of the failure to sue, the blame game. After reading his book however, I see now that civil dispute resolution has so many stages, as shown on page 34 of the book, that there are too many places where a plaintiff can get overwhelmed and decide to “lump” and do nothing, drop the case, or settle for anything at that point, just to end the exhaustive process. This new information influenced me on how I think of the process in general. I now see it as more of a marathon than a sprint to a fair resolution. It is not as if a just outcome is impossible, but I realize now that in our justice system, stamina is just as important as any other motivating factor in civil disputes.
Tort reformers have countless ideas on how to better the system, for that matter, even those who don’t classify themselves as reformers would undoubtedly make some changes. Imaging how I would reform the system is a scary challenge, not because I wouldn’t have good conceptual ideas, but because I really don’t have the experience to properly make smart proposals. It is like asking someone that has only cooked Hot Pockets their whole life to redesign the kitchen at the Four Seasons . . . possible, but not wise. That being said, no point in wasting a perfectly good magic wand opportunity to shape the U.S. tort system in my vision.

The first thing that comes to mind is balancing the cost of litigation with the merits of the cases themselves. I would make it so that all tort victories would have a stipulation that the losing party pay the winning sides legal fees. I know there are obviously avenues to request that within a verdict, etc., but I am talking about a blanket policy, automatic each and every time. This would allow for people who can’t really afford a lawyer, but who have legitimate cases, to go forward through the whole process with the assurance that cases with merit have a good chance of being cost effective. I would cap the lawyer’s fees based on the financial ability of the party to repay such fees. In the same spirit of giving those with restrictive financial situations a fair shake, I would institute a system similar to public defenders, but for the civil system. Lawyers in this newly created section would be paid out of a fund that is feed through a combination of court fees that are imposed in the filing stage of a case and a mandatory 2% fee off the top of any settlements reached after a case has been filed in the system. This would be done in hopes that more lawyers would be willing to take on cases of the less financially fortunate without having to worry about how to stay in business and cover their costs. All these changes would be made statutorily, since I would want my magic wand changes to be permanent and difficult to change.

Lastly, I would make it so that there is a fast track to cases where the plaintiff is a military veteran. The thought behind this is to reward the men and women who take the risks and offer their services to protect the freedoms of our nation, because without them, the freedom provided by our laws and court systems may not exist. Those are the specific changes that I would make, but in general, I would just like it easier for people who are financially unable or afraid of filing a civil case to be more apt to at least examine the potential without fear of the costs. If I can remove economics from the table, or at least mitigate it when it comes to the ability to bring forwards legitimate cases, then perhaps our U.S. tort system could be the beacon of justice and equality that I always thought of it as before. I know much that I propose isn’t feasible, simply because it involves money. To tell people they have to pay money for this, or for that, undoubtedly would bring a chorus of complaints as to why they should be the ones to bear the burden and not someone else.

In the U.S. our torts system is hundreds of years old, so if changes were so easy to make, chances are they would have been made by now. My ideas would have an especially difficult time in the United States in particular because of the diversity of liberalism and conservative mindsets throughout the country. Some areas may whole heartedly embrace those magic wand changes, while others would fight tooth and nail to keep from subsidizing our torts system in any manner. In the end, feasible or not, my plans or not, hopefully the U.S. torts system doesn’t get further and further from the reach of those who suffer injustices, but are financially restrained. Oh, one last thing before I give up this magic wand, I would ban all law lawyer ads that come on past 11pm and involve a catchy jingle, cowboy outfit, or a talking animal . . . it really just hurts us all in the end.

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