Wednesday, May 9, 2018

Truly Frivolous: A Discussion of 'The Myth of the Litigious Society'

By Aleah Fisher
I’ve always known that there are frivolous lawsuits and that people try to take advantage of the court system, but David Engel’s book, The Myth of the Litigious Society, showed me that maybe I wasn’t looking hard enough at each of the cases.

In chapter 7, Engel describes incidents where someone’s physical environment causes an injury. These cases at first glance all seem frivolous. The parties state that the stairs caused them to fall, chairs gave them back pain, and their blind spot caused them to hit their child with their car. These claims all involve choices made and actions taken by the injured parties. They chose to take the stairs when there are other ways to get to their destination, they chose to sit for long periods of time, and they put the car in reverse and hit the gas.

At first glance, each of these cases made me angry. They were blaming inanimate objects for choices they made. I knew that maybe the stairs had truly been too steep, but others had climbed those stairs and not fallen. Engel mentioned that the chairs were poorly designed, but they sat in them over and over again and likely didn’t take any actions to prevent back problems which have been tied to a sedentary lifestyle for years. Blind spots are dangerous, but what was a two-year-old doing standing in a driveway unsupervised. I felt like blaming the stairs, chairs and car was like blaming the tree when someone cut it down and it fell on someone else. It’s like holding the knife liable for stabbing someone. It’s ridiculous.

Then I got to the McDonald's case, which I was much more familiar with. I had heard the story that everyone hears about the case. A money grabber didn’t realize coffee was hot and sued when they got burned. In reality though, McDonald's was knowingly serving dangerously hot coffee, which resulted in an elderly woman getting third-degree burns. The case wasn’t as simple as I thought it was originally.

That made me think about the other cases. Though lots of people fall because they are clumsy, this may have been the case of stairs that were actually dangerous. Maybe this was the instance where the design of car truly was the cause of their back problems. Maybe the person watching the child had turned away for a second and the driver really thought the path was clear. I didn’t know enough about these cases to determine if they were truly frivolous, or if liability was warranted.

I, like so many, heard repeatedly about those who were trying to take advantage of the courts system which biased me. My first instinct was to think that these people were blaming the world for their problems, and maybe some of them were, but maybe it was more complicated then I had originally thought. That thought though created a new problem: which cases were frivolous and which parties had a true claim?

In theory, the American tort system should be able to solve this problem. By evaluating each claim individually, the courts can distinguish between cases where someone fell because they are clumsy or because the stairs have a poor design. The courts can determine in a case like the McDonald’s one, if the injury was caused by actions of the woman holding the coffee or if there is actually true fault on the part of the restaurant and there should be liability. The courts can also place liability on the party that is truly responsible for the injuries. For example, like in the McDonald’s case, by holding the defendant liable, the courts can hold the specific company or individual responsible for the harm they caused. If the injuries were actually caused by the actions or negligence of the injured party, by ruling for the defendant, the courts can put the liability on the injured party.

The American tort system handles frivolous claims better than a system, like the one in New Zealand, for example, which focuses on compensation instead of liability because it addresses whether the defendant is truly liable, awards compensation based on injuries which can be proven to be the defendants fault, and holds the party at fault solely responsible for their actions whether negligent or intentional.

The system doesn’t always work perfectly, but that’s not because the idea behind the system is flawed; it is because humans are flawed. Judges, lawyers and juries make mistakes. Sometimes they wrongfully find liability, and sometimes they don’t find liability when it should be there. Unfortunately, a system that works in theory is probably the closest we can get to perfection. We can evaluate what’s going wrong and try to adjust, but human error is inevitable.

So, if I could change something in the tort system, I wouldn’t fix trials or change over to a system like New Zealand's, which focuses on compensation instead of liability. The American tort system, in theory, finds liability and gives compensation when deserved, and I’d be wasting my time to say we should get closer to finding the truth in each case and stop making mistakes in rulings. It’s just not a realistic goal or even a helpful observation. If I could change something, I would stop the courts from having to act so retroactively.

These cases reminded me that one of the most important things courts do through torts that often gets overlooked is standard setting. In the McDonald’s case for example, the courts didn't just award compensation to a woman burned because the coffee she was served was dangerously hot. The courts set a standard for McDonald's and other restaurants as to serving dangerously hot coffee.

This is a wonderful thing which benefits society greatly, but ideally the role of standard setting should be given to the legislature. Standard setting is normative which is supposed to be the legislature’s concern. Unfortunately, our legislature cannot see the future and often moves so slowly that if they could see future problems, they wouldn’t be able to solve them in time. The courts as a generally faster moving body, though to be fair, still very slow, act on these issues as they come up and then the legislature addresses them after if they feel the courts got it wrong or want a more concrete standard. We only talk about hot beverages once someone has been burned. That may seem trivial, but it is also true for larger issues. We only talk about bullying after a public suicide, or gun laws after a mass shooting, or national security after a terrorist attack. Our legislature and courts are constantly trying to fix things once they’ve already gone wrong.

I know that is impossible to foresee every problem and I know the legislature attempts to work proactively. I don’t even have an answer as to what more they could do to fix problems before they occur. We look at data and bring in experts, so maybe just more research, more advice from experts, and more forward thinking. The American legislature already takes a lot of steps toward acting proactively, and the courts try to help on issues we don’t see coming.

So I guess if I had a magic wand, I would remove human error from courts and give the legislature the power to see the future.  But realistically I’d like more research into evidence and jury bias, so courts can reach the truth more often, and I’d like more scientist, psychologists and sociologists in politics, so the legislature can work more proactively, and so the courts don’t have to set so many standards for the public.

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