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By Marion Edwyn Harrison, Esq.
April 3, 2006
That oft-cited standby of lawyer and layman
alike, BLACK’S LAW DICTIONARY, contains almost three
small-point columns defining kinds of torts. Suffice it to
quote the first, and basic, definition: “A civil wrong
for which a remedy may be obtained, usually in the form of
damages; a breach of a duty that the law imposes on everyone
in the same relation to one another as those involved in a
given transaction.”
In simpler and more pragmatic terminology,
that means if one harms another or another’s property
and does so negligently or grossly negligently, or sometimes
merely when one had a “last clear chance” to avoid
the harm, one has committed a tort, and, hence, is a tortfeasor.
It isn’t necessary that the tortfeasor concurrently has
violated a law (although sometimes he has).
Torts lead to litigation. As Hamlet (and
lots of others) said, “Ay, there’s the rub.”
As the multibillion dollar fiasco of tort litigation gone
wild spreads like an economic and cultural “dumb-down”
version of the deadliest Medieval plague, conservatives must
lead the charge - and a rather militant charge at that - in
attempting reform. Fortunately, if adequately organized, there
are millions of Americans who do not think of themselves as
conservatives, or often as of any other “label,”
who would join the cause.
Hyperbole becomes reality in evaluating
the cost in dollars, to the social order and to the culture
of the spread of this ubiquitous virus. No measure is easy
to quantify. Perhaps the least difficult is the economic.
The most recent Tillinghast Survey (March 16, 2006), for example,
estimates the gross cost to Americans of torturous damage
to have been $ 260 billion in 2004, projected to rise to $
315 billion in 2007. For irrelevant reasons (relating to Tillinghast’s
inclusion of types of costs) the estimate arising from litigation
probably is nearer 43%, or $ 112 billion, yet a staggering
and unacceptable sum, higher as a GDP percentage than that
of any other country.
The cost to the culture and social order,
as noted, is the more difficult - indeed, probably impossible
- to quantify. It is obvious to those who look about that
there is a rather pervasive victimization mentality: If some
ill fate befalls me, wholly or mostly not my fault, somebody
must pay me - and pay me big time. Never mind that maybe it
was nobody’s fault.
We all read about the staggeringly large
jury verdicts which jurors return and judges, at times only
because required to do so, sustain. Somebody smokes himself
into cancer; it’s Big Tobacco’s fault. A baby is
born defective; it’s the obstetrician’s fault. Somebody
drives recklessly, something mechanical fails in the combination
of speed and other recklessness; it’s the manufacturer
or the dealer’s fault. A patient acquires an imperceptible
staph infection at the hospital; it’s the hospital’s
fault. A compulsive or indiscriminate eater eats himself into
obesity or illness; it’s the restaurant, drive-in or
other merchant’s fault. Somebody takes ill from asbestos
exposure before science discovered the risk in asbestos; it’s
the fault of the distributor, homebuilder, end-user, whoever.
So on. Of course, there may be exceptions but the exceptions
are so rare as to be statistically insignificant.
Whether individual actions (that is, plaintiffs
suing) or class actions (that is, large numbers joined together
by plaintiffs’ lawyers to sue), the claims abound. Billions
are paid out by insurance companies (raising premiums for
all of us); more billions are handed out by jurors, the so-called
“Trial Lawyers” (that is, plaintiffs’ contingency-fee
attorneys) not uncommonly raking in more than the plaintiffs.
Goods and services cost more; shareholders, the employed and
the self-employed all net less income.
Who are these jurors? It’s not “politically
correct” to characterize a group of people. Yet in analyzing
a group, as distinguished from analyzing individuals, some
profiling is essential. Jurors in these civil tort cases must
pass investigation by, and usually Q&A (“voir dire”)
with, the attorneys trying the case. Plaintiffs’ contingency-fee
attorneys by and large are a competent coterie, especially
skilled at analyzing, and playing to, jurors. People-skills
are vital; many of them are “working psychologists.”
The ideal plaintiffs’ tort juror is (1) a sympathetic
or charitable individual - “good” guy or gal; (2)
susceptible to a skillful emotional pitch; (3) without demanding
employment, hence able to sit through days, weeks or months
of testimony (often retired or a worker whose employer pays
him or gives administrative leave); (4) somewhat low on the
assets and income scale - and more particularly, with scant
comprehension of the value of huge dollars; (5) inexperienced
in business, medicine or whatever the defendant’s activity;
and (6) somewhat intelligent but not bright enough to see
through to the realities, much less to understand anything
sophisticated, technical or otherwise complicated - a person
nobody would hire to perform a task related to any profession,
skill, technology, business or pursuit involved in the tort
case.
When the Framers provided in the Constitution,
Article III, § 2, and Amendments VI and VII, for jury-trial
rights, they did so in the context that most Colonial and
English jurors had been, and would continue to be, responsible
citizens of some substance, often landowners - the trite phrase,
“one’s peers.” Furthermore, life was simpler.
They likewise legislated in the prevailing context that a
judge had considerable discretion in speaking to the jury.
The biggest single stumbling block to civil
justice is the standard of proof. In a criminal case it’s
proof beyond a reasonable doubt. In a civil case it’s
merely a preponderance of the evidence - i.e., the plaintiff
“victim” churns up a little more evidence than the
defendant. The adjective “punitive” indisputably
refers to punishment. Punishment derives from criminal, not
civil, conduct. Thus, in effect if not in nomenclature, a
tort defendant is convicted as though a criminal yet he often
has violated no law, never is entitled to the presumption
of innocence and is assessed “punitive” damages
as though he were a criminal - and all upon the basis of a
mere preponderance of the evidence.
The next biggest stumbling block is excessive
damages. The Federal Judiciary, and more particularly the
Supreme Court of the United States, have tried to downsize
damages but the result is only modestly helpful, often inapplicable
- and much of the problem is not the judiciary’s business
anyway but that of legislators.
A third, and much lesser, stumbling block
is the unrealistic limitation upon a trial judge’s role.
In probably every other country, including England (whence
derives our jurisprudence), a judge can comment to a jury
upon the evidence, sometimes even upon the reliability of
a witness, sometimes with no limitation other than the judge’s
ultimate instruction that the jurors must make up their own
minds. By contrast, the voices - even the gestures and body
language - of American judges are curtailed to almost nothingness.
These rectifications of the rampantly reckless
tort system must derive from Federal and State legislation
and, in some instances, from State constitutional amendment.
The next conservatism must seek to return reality to tort
litigation. Basic fairness and our economy in an increasingly
competitive world demand it.
Marion Edwyn Harrison is President
of, and Counsel to, the Free Congress Foundation.
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