American Tort System: A Roll of the Dice

By L. L. Wilson

The Myth of the Litigious Society is an easy read delving into David Engel’s perception of why many people in the United States don’t feel compelled to utilize the American tort system when a civil wrong has been committed against them. For the most part Engel’s reasons appear to be based on facts and research and is quite believable, but it feels like the list of reasons is incomplete with the author leaving out the most obvious reason that people don’t file tort claims. I believe that the missing and most obvious reason is it being an elaborate form of gambling.

Early on in the book on page 12, Engel writes, “Put simply tort law converts human pain and suffering into money.” Although the statement is sometimes true, it really boils down to a roll of the dice. The truth is that nowhere does the legal system promise anyone that their human pain and suffering will be converted to money. Suing is risky financial business. It is a game where only some win and often times both sides loose money, pride, and faith in the system. Players only know some of the rules and even those can change after that game has started.

When interviewed last year, Judge Posner explained just how unstable the rules of the game can be. He stated, “I pay very little attention to legal rules, statutes, constitutional provisions.” “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?” The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

There is no hiding the fact that judges and attorneys know how to manipulate the system and are not shy in doing so.

Great companies minimize or balance risk through risk management. They have short and long term financial plans, growth plans, rainy day funds, and emergency funds. They make sound business decisions. Conservative is safe when it comes to investing. Give a conservative investor a relatively low return on investment over the long haul and they are happy because it’s reliable. It is a known quantity. It is a low financial risk. It’s not a gamble. The tort system attempts to lure investors into the risky investment of litigation with the hope of getting rich. There are too many variables and unknowns to make it a sound investment in time, money, and emotional health. Often times the plaintiff ends up loosing more than he or she would have had they not sued. It’s just not worth the gamble.

After spending more than 50 years on the planet earth, I have passed up many opportunities to file valid lawsuits. Viable claims span from negligent exposure to asbestos, cancer causing hydrocarbons and chemicals, to discrimination, sexual harassment, civil rights violations, assault and battery, and medical malpractice. Throw in a wrongful birth and failure to educate, and it’s a fairly complete list of possible cases I have passed on.

There are four questions I asked myself when deciding against each and every possible lawsuit. I viewed it as a business decision first. How much would it cost me? How much time would it take? What would be the additional stress load on my loved ones and me? What are the chances that I would win? Not a single one of the questions I needed to move forward could be answered prior to starting the process. Everything was variable. Everything was a risk. The math simply didn’t work. I am certain that if I came to this conclusion, others faced with the same dilemma have too. The American tort system is a lottery, and worse than that, suing is often just a bad business decision.

By not filing lawsuits, we are back to the vigilante problem. Cement shoes, sending people for dirt naps, breaking legs and stealing chickens aren’t my things. Instead I figured law school was the best solution for my situation. All four of my questions had reasonable answers before spending a dime on or committing to law school. I knew how much time and money it would take. Statistically, I had access to attrition rates and knew that the odds of “winning” were more in my control than not. According to my Posner math, coming to law school was cheaper, would take less time, would be less stressful, and it’s better for society. Additionally, the money spent on law school has higher odds for a better return on investment than filing any of my potential lawsuits.

If I dusted off the magic wand I would wave it around and adopt a compensation system similar to New Zealand’s. The problem of holding the bad actors accountable would likely still persist but I don’t think the American tort system is as much of a deterrent as we’d like to think it is. Americans are being injured and not being compensated and it should not be about luck of the draw or roll of a dice. All Americans should be compensated for their injuries even if it is discounted.