Thursday, August 31, 2006
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Peter Nordberg is a shareholder in the law firm of Berger & Montague and runs Daubert on the Web.
I always enjoy exchanging views with Ted Frank, despite our tendency to see things differently on nearly every earthly subject. Maybe it’s because Ted is so unfailingly polite, even when he worries that he hasn’t been.
On the issue of ideology in the classroom, maybe I should have been a little clearer. Legal positivism notwithstanding, there is no such thing as “value free” law, and law schools should not promulgate the fiction that there is. Especially not in torts class. To the contrary, students should develop a healthy appreciation that the tort system has winners and losers, and that our legal rules are not mere lemmas following ineluctably from some immutable set of neutral principles, written in the sky. Legal rules implement policy choices that are open to rational debate, and they reflect an often imperfect balance between competing and sometimes incommensurable social values.
So although I don’t share the view that the legal academy is currently overtaken with a pro-liability bias, neither do I begrudge classroom discussion of the McDonald’s coffee case. Admittedly, it’s just one case, out of the millions that have contributed to our nation’s jurisprudence since the Founding. But it may be one suitable vehicle for honing students’ skills at policy analysis. It is also so canonical a fount of anti-tort wisdom, by now, that any law school graduate would be at severe disadvantage during cocktail hour, if not conversant with it.
What I do think is that not every policy debate contributes to the inculcation of specialized legal knowledge. There’s something to be said, perhaps, for exposing graduate students in all fields and disciplines to critiques tending to call broad swatches of their whole professional endeavor into radical question. But that is not a practice we tend to follow with any special zeal in other areas. Business schools do not generally bring in weekly guest lecturers on the negative social and spiritual consequences that follow from the human and corporate pursuit of economic gain. It is assumed that a vast literature on that subject is already available to the B-school students, and that it was open to them to become ministers, or social anthropologists, if they wanted to. We likewise assume that candidates for doctoral degrees in physics already know, or can easily find out, that scientific knowledge can be used for good or evil. If we nevertheless make them pay tuition to attend compulsory seminars on that topic, the seminars had better tell them something they didn’t already know – something that may prove useful to them in their professional endeavors, or that may add in some valuable way to the fund of knowledge with which their general education has already endowed them, or with which their professional and life experiences soon will.
So too with law. Yes, lawsuits are usually time-consuming, resource-devouring, agenda-disrupting endeavors, for everyone involved. As a solution to any person’s problems, they should be considered a last resort (leaving aside such nonsolutions as physical violence or acquiescent deference to the will of the stronger). It’s impossible for me to believe that any law students lack a basic understanding of these features of our legal system by the time they matriculate. They form a fundamental theme of our literature and culture, from Dickens to Kafka to Ted Frank. And if it has previously escaped students’ attention that discovery, for example, can be a burdensome thing, or that its burdensomeness can be exploited to tactical advantage, that subject is sure to come up, as matters already stand, sometime during the discussion of Rule 26 during first-year civil procedure class. Likewise, if any students fail to grasp, by the time commencement rolls around, that our legal system creates costs for commercial enterprises – costs those enterprises would quite naturally prefer not to incur – then I’m willing to agree to withhold those students’ diplomas, pending their completion of a summer-school course at the Manhattan Institute.
I’m sure, in short, that many students would enjoy putting down the casebooks for a spirited rehashing of everybody’s armchair opinions on whether litigation is a good thing or a bad thing. But unless further discussion of these topics has something tangible and useful to contribute to their professional education, beyond whatever any college graduate could already glean from the extensive public debate on these issues, I’d prefer to move on, in law school, to more intellectually and professionally nutritious subjects.
This is part of the series of guest posts about what should be taught in Torts.
But I would go further and challenge McClurg's premise: what common-law tradition? Roger Traynor did more to upset the common-law tradition than any reformer. Product liability law is a modern creation that overturned centuries of common-law tradition, as is strict liability for socially productive activity, as are class actions (much less class actions permitting recovery without cognizable injury), as is the distortion of "public nuisance" law to take on handgun or lead paint manufacturers, as are torts such as "wrongful birth," as is the notion that cost-benefit analysis is an appropriate subject for punitive damages (as opposed to Learned Hand, who identified cost-benefit analysis as the appropriate means of determining due care). I daresay that Peter Huber's notion of optimal tort law is closer to the common-law tradition than ATLA's. Or is it only a danger to the common-law tradition when changes might harm plaintiffs' lawyers? (Are "memorial damages" a threat to the common-law tradition?) And is it really the case that only the judiciary is allowed to utterly rewrite the law?
Separately, Peter Nordberg pooh-poohs my post's suggestions as injecting "ideology" into the classroom. To the extent ideology in the classroom is a problem, Martin Grace's post suggests that it sure isn't an ideology of reform. How many law professors spend time "debunking" the McDonald's coffee case (which needs no debunking), and how many spend time debunking the myth of the exploding Ford Pinto? (As unbelievable as Professor Grace's experience seems, I recall having a similar experience in a criminal law class when I mentioned cost-benefit issues, and I went to law school at the freaking University of Chicago.) But I disagree that I was injecting ideology; I was merely making the same point as plaintiffs' attorney Dave Swanner, which is that torts classes don't quite teach what actually happens in a tort case.
I'll be more polite to Peter's opening post, which makes suggestions that aren't quite tort-specific; I agree that law students should get more training in statistics, in logical reasoning, in scientific thinking. One can think of other examples, such as basic business concepts. I'd go even further and posit that law schools that graduate students who haven't had at least an intermediate-level microeconomics course are doing the profession and society a disservice.
This is part of the series of guest posts about what should be taught in Torts.
Michael Moreland is an assistant professor at Villanova University School of Law. Most recently, he was Associate Director for Domestic Policy at the White House.
Thanks to my former Williams & Connolly colleague Bill Childs for arranging this series of posts on what should be taught in 1L torts, which is especially helpful for those of us just launching our teaching careers. Thanks also to Andrew McClurg for his post and for his 2005 article "Dead Sorrow" [PDF], which, as Bill pointed out a few months ago, is an extraordinary meditation on the human face of tort law. [Ed.: Links to more discussion of the article are in McClurg's original post.]
I do want to respond to Professor McClurg's argument that the common law tradition is somehow under assault by tort reform initiatives. A threshold issue is whether legislatures or courts are best suited to address dysfunctions in the tort system, a debate probably best conducted issue by issue. It seems to me, though, that most of the tort reform proposals over the past several years--and especially those that have been enacted successfully at the federal or state level--were precisely in areas where McClurg's view of the common law had proven inadequate to the task at hand of administering a fair and efficient system for resolving meritorious claims and compensating victims: excessive damages, abuse of class actions, and unmanageable mass torts. The 2005 federal Class Action Fairness Act, for example, responded to systemic problems created by abuses of class actions that courts -- particularly state courts -- could not resolve, whether on account of the local politics of the judiciary in some states or forum-shopping by plaintiffs' lawyers. As with any assertion in the tort reform debate, of course, this is subject to a battle of data. Cf. George Priest's white paper [PDF] for the Manhattan Institute.
An even better example might be asbestos litigation reform, which has failed at the federal level (largely but not exclusively due to the opposition of the plaintiffs' bar) but has been enacted in some states. In Ortiz v. Fibreboard, Justice Souter termed asbestos litigation an "elephantine mass" that "defies customary judicial administration and calls for national legislation." What are we to make of such mass torts that on account of the number or complexity of cases stretch the common law system beyond its limits? And do legislative solutions in such cases in the name of tort reform somehow undermine the common law -- or do they rescue it?
In an AP piece in the Insurance Journal (also picked up elsewhere), we hear about the effects of a damage cap in Mississippi law on a tragic case in which a woman bystander was injured by an allegedly negligent police officer on a motorcycle in a parade.
The little known act, Alabama Code Section 11-93-2, caps dollar awards in lawsuits against local governments at $100,000 per plaintiff and $300,000 per incident, while preventing suits against individual employees.
The story is pitched as "the other side of tort reform," and it is indeed a fine example of the fact that damage caps do have bad effects on individuals, which, one hopes, is not a surprise to anyone, including advocates of caps.
Probably more interesting, it's a good example of the perhaps-unintended consequences of failing to index caps to inflation. The $100,000/$300,000 caps were adopted nearly thirty years ago, when $100,000 and $300,000 covered substantially more, especially in medical expenses.
There's also an interesting bit about the relationship (or lack thereof) between damage caps and insurance premiums for cities:
"I don't know that anyone can authoritatively comment at this point on the real impact of tort caps,'' said Harold Pumford, executive director of the Association of Governmental Risk Pools.
There just isn't enough information available to tell, he said.
Until recently, most of the data on the subject has been gathered by insurance companies and trial lawyers, who keep the information guarded for business purposes. When legislatures consider tort reform bills, they rely on these groups for their facts. Furthermore, most companies keep track only of regional statistics.
A project to create the first national database is just now under way. The group undertaking it, called the Public Entity Risk Institute, was created with money from a class-action suit brought by 20 state attorneys general against several insurance companies. The group is compiling tort claims data from across the country to answer questions such as just what caps do to insurance rates.
With about 10 percent of cities reporting so far, the institute has found most lawsuits fall well below even Alabama's $100,000-per-person and $300,000-per-incident limit. The average claim paid by a city for a wrongful police action was $43,622. The average for a government vehicle accident was $9,278.
Wednesday, August 30, 2006
We should be teaching about race in torts. Torts is not divorced from our society, as many of the posts point out. Yet, generally torts is treated as if race and racism were entirely separate from it. This is not true.
Certain tort cases can be used as an excellent tool for teaching about race in our society alongside teaching about doctrine.
Two examples make this point. The first is a fascinating Fifth Circuit case that deals with duty and foreseeability, and the empirical conclusions that go into making duty determinations, Bullock v. Tamiami Trail Tours, Inc., 266 F.2d 326 (5th Cir. 1959). This case is not in any casebooks that I know of (yet). Bullock dealt with the 1957 assault by a bus passenger of a married couple from Jamaica. The couple was sitting in the front of the bus when they were assaulted. The husband appeared black and the wife appeared white. The narrow legal issue was whether the bus company should have had a duty to protect the couple from an assault by a fellow passenger. The District Court had answered this question in the negative, 162 F. Supp. 203 (N.D. Fla. 1958). The Fifth Circuit reversed, noting that given the racial dynamics of the situation, 'mischief was hovering about' so that the bus company did have a duty. The decision includes the assailant's testimony (he was enraged to see a black man sitting with a white woman in the front of the bus), the bus driver's testimony, testimony that a white woman and black man had never sat in the front of a bus in Taylor county before, and so forth. The Fifth Circuit put all these facts together to form a conclusion that an attack of some sort on these passengers was foreseeable and should have been prevented, while the District Court had drawn an opposing conclusion. Altogether this case is a great case to use to teach about duty, foreseeability, common carriers, and race. I discuss this more in Toward a Feminist Revision of Torts, 13 American University Journal of Gender, Social Policy & the Law(2005).
The second example is Gulf v. Luther, 90 S.W. 44, 45 (Tex. Civ. App. 1905), which displays powerful stereotypes of fragile helpless white women and masculine, scarey black women in the course of holding a railroad liable for a black woman attendant's shaking of her finger at a white women in a 'ladies' waiting room.' This is also discussed in the above-cited article. More discussion about race and torts is found in my article Torts, Race, and the Value of Injury, 1900-1949, 49 Howard L. J.99 (2005).
While we're talking about teaching Torts, it's a good time to plug an article talking about the rationales for Torts in the first place. Lucky us, here's a new SSRN posting from Christopher Robinette (Widener). The abstract:
Most modern torts scholars adopt a monistic view of torts, arguing that the tort system can be justified or explained by reference to a single rationale. In contrast, few torts pluralists, scholars believing the tort system is based on multiple rationales, have put forward a general theory or framework for tort law.
A pluralistic view of the tort system poses significant questions about the relationship among the rationales. Do the rationales work together as a seamless whole? Do the rationales conflict? If they conflict, how does one choose among them? Does the entire system devolve into adjudicative relativism, whereby a judge has no rational basis for choosing among the rationales in the case of a conflict?
In this Article, I argue that the value pluralism of Sir Isaiah Berlin, the late English philosopher, provides the framework in which the torts rationales interact. A Berlinian understanding of tort law consists of four propositions. First, the torts rationales are truly distinct; each of them conveys a different idea about the purpose of tort law. Second, these rationales are objective. Each torts rationale exemplifies a legitimate purpose for human beings to pursue. Third, the torts rationales have the potential to be incompatible. Indeed, the theories often entail opposing conclusions. Finally, the torts rationales are incommensurable - incapable of being ordered in a timeless hierarchy.
This leaves torts judges, in any given case, in the position of having to select among rationales, which cannot be arranged in a consistent hierarchy and may be incompatible. Berlin has little advice about the issue of choosing among options as a general matter. However, his comments on choice indicate that context is by far the most significant factor in making the decisions. If the torts rationales are “unrankable in the abstract,” context allows judges to rationally choose among them. Thus, the lesson for scholars is to focus on the contexts of torts. Although this contradicts the current monistic trend in torts scholarship, with its concomitant de-emphasization of the particular, the emphasis on context is completely consistent with the common law itself.
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Peter Nordberg is a shareholder in the law firm of Berger & Montague and runs Daubert on the Web.
Asking lawyers and law professors and judges what should be taught in law school is probably a little like asking parents what should be taught at their local elementary school. There will be a wide variety of responses, and consensus will be elusive. But the opinions elicited will certainly tell us something about the perspectives of the opining parties.
Some themes do emerge. Some commenters (Day, Swanner) want to work harder at imparting useful, practical skills and know-how. That’s a respectable opinion, and probably a widespread one, but I don’t really believe that law schools need to do more of this. Most law schools already make substantial curricular gestures toward teaching trial skills, to any students who really want to learn them. Clinical programs also give students a chance to learn their way around the practical block – which is fine, as far as it goes. For the most part, though, I think the acquisition of serious practical savoir faire must probably await actual practice – where practical issues will promptly hit recent graduates like 5-ton anvils dropping on their heads, generally to become their central preoccupation for the remainder of their professional lives. If we’re going to have law schools at all, rather than an apprentice system, we’ll do better, I think, if we try to give people three years in an Ivory Tower. Most law students will never have a later chance to learn doctrine and theory in such depth, and in my opinion, we should make the most of it.
But maybe I’m just an Ivory Tower kind of guy. The students themselves, no doubt, are pretty career-focused these days, and they would probably gobble up the practical stuff like so much ice cream.
Other commenters (Bailey, Frank) seemingly want to impart more of their own ideological perspective to the tort curriculum. I can’t blame them for trying, but I saw no shortage of opportunities for policy debate in law school. That seemed to be everybody’s favorite law-related pastime, in fact, and the anti-liability camp was far from under-represented. Personally, I question the fairness, at prevailing tuition rates, of taking up much more of the students’ time with inquiry into whether tort liability, or the adversary system, should be counted as good things or bad things. Let them have colloquia on that stuff over at the business school (where Ted Frank might feel more at home anyway). Let them agonize over there about the chilling effects on commerce that rules of conduct can have.
A number of commenters seem interested in exposing students to more cross-disciplinary knowledge (Owen, Shapo, and also McClurg, if comparative law counts). Not everybody agrees on the particulars, but the common wellspring of inspiration, perhaps, is that law students and lawyers could profit from a deeper awareness that there’s usually more than one way to think about things – and that many of these “other ways” have actually been tried, frequently with some measure of success. I’m obviously sympathetic to that viewpoint (questioning, as I do, whether there’s really as radical a gap between legal reasoning and other modes of rationality as it is fashionable, among lawyers, to suppose). Rather than attempt to cover all of the other intellectual traditions and perspectives that might legitimately claim some relevance to the law (or the torts curriculum), maybe the smart thing would be to pick one or two that seem likely to be of special and lasting value, and cover them really well – i.e., not in passing or token fashion.
Tuesday, August 29, 2006
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
David Owen is the Carolina Distinguished Professor of Law and Director of the Office of Tort Law Studies at the University of South Carolina where he teaches courses on Tort Law and Products Liability.
Of the things I wish 1st Year Law Students would learn, there are some I teach them and some I don't have time to teach.
What I Try to Teach Them. Substantively, I try to teach them just about all the fundamentals -- doctrine, policy, and a little economics and moral philosophy -- of tort law concerned with personal injuries. In addition, I try to teach them how to resolve tort problems (and to think and speak) precisely and logically, and respectfully of the law, people within the law, and those affected by the law.
What I'd Like Them to Learn But Cannot Teach Them. If I had more time the first year (and what I have tried to address in advanced torts courses and seminars), I'd like to teach them more about the intersections of tort law and other fields -- substantive fields, like contracts (delve deeper, for example, into the whys and wherefores of the pure-economic-loss doctrine), property (nuisance law, for example), and workers' comp; and deeper into economics, politics, and philosophy, and policy generally.
The key to making a decent living (and maintaining sanity) as a plaintiff's lawyer is knowing when to turn a case down.
Our law firm’s work usually comes from other lawyers. These lawyers often have a conflict or have an inquiry about a case in an area outside their expertise. Most frequently, however, the referring lawyer has a case that will require the investment of either a considerable sum of money or time and the risk of loss of represents too great of a risk for them to handle the case on their own.
We recently turned down a case for one lawyer because we did not think it could be won. He was disappointed--the damages in the potential case are huge and the clients are wonderful people. But I did not think that the case could be won even one out of ten times before a jury. The referring lawyer thought we should be more aggressive, more willing to assume risk. I went off on a gentle rant with him; that rant gave rise to an entry in my blog (www.dayontorts.com) and, now, an expansion of those ideas are set forth in this paper.
As plaintiffs’ lawyers, we are in the risk business. We work for free -- unless we win. We advance the costs -- sometimes hundreds of thousands of dollars in a single case--and don't get it back unless we win. If you are not willing to accept some risk, you need to do something else.
I am not risk-adverse. That being said, I don't play blackjack, I don't shoot craps, and I don't play poker. I am a plaintiffs’ lawyer. Simply put, gambling is my vocation, not my avocation. I like a little more control over the outcome of any event other than the flip of a card or a roll of the dice.
But just like you don't "hit" on 19 and don't "go all in" on a pair of twos, you cannot accept every case with strong damages proof simply because it has the potential for a significant jury verdict. There has to be a reasonable opportunity for a recovery for your client. In other words, you must be able to articulate (at least to yourself) that there is a reasonable belief that a jury will determine that someone did something wrong and caused an injury that a jury will value and will result in a judgment that can be collected. In addition, you must know that the claim is either well-grounded in current law or you have a good shot at making new law. In most cases (the exceptions will be discussed below), the risk of loss must be balanced against the potential recovery and both must be weighed against the investment of time and money as part of the case selection process.
As trial lawyers we have only a few resources available to us to commit to any case. Those resources are: (a) our mind; (b) the minds of those who work with us; (c) our money; (d) our time; and (e) the time of those who work with us. Let’s explore each.
Our mind. Each of us are blessed with a strong mind and ability to learn. There is virtually nothing that we cannot learn if we are willing to dedicate the time to do it and have appropriate resources available to us. Our co-workers have various skills that are hopefully consistent with, and certainly not less than, those required for their particular job, but almost all of them are able to learn and grow within their job provided they are given enough training and time to do so.
Our money. For most of us, money is a more finite resource than our ability to learn. For plaintiffs’ lawyers, money impacts our practice in three ways. First, we spend money on out-of-pocket expenses to prepare a case for trial and to try it. Unfortunately, this is the only aspect of the money equation that many plaintiffs’ lawyers think about and, quite frankly, many of us do not do a very good job at looking at those expenses on the front-end of a case.
Second, there is the cost of paying co-workers and overhead while we prepare the case for trial and try it. This is a cost that some of us have a handle on but, once again, many of us do not spent a lot of time thinking about, much less quantifying it.
You may want to sit down and figure out what it costs to operate your office per hour; in fact, I encourage you to do so. To determine "overhead" include everything but lawyer and paralegal salaries, FICA taxes, benefits, and case expenses. Assume that a lawyer will "bill" 1800 hours and a paralegal will "bill" 1300 hours. (By "bill" I mean the number of productive hours you can get out of each professional, knowing that they have other "nonbillable" responsibilities and that each will take vacations, get sick, etc. These numbers are high-reasonable expectations.) Divide your total hours available for productive work by the professionals in your office into your overhead. The result is what it costs you per hour in pure “overhead” for each "billable" hour. To figure out what each professional employee “costs” you per hour divide the dollar value of each person's salary and benefits by the assumed productive hours for that professional. Then, add that sum to the amount of overhead per hour and you have a good feel what it "costs" to have a given professional work on case per hour.
Scary, isn't it?
The cost per hour depends on a multitude of factors, but most people who do this exercise are surprised what it costs them per hour to give legal service to a client. Hopefully, this information will help you in determining what cases you can afford to accept and, when working by the hour, what your hourly rate must be for to permit you to have a decent rate of return on your investment.
Third, there is “opportunity cost.” Opportunity cost is the loss of income and other things from preparing and trying one case as opposed to another or, even, doing something else entirely. Assuming that we are only willing or able to devote “x” number of hours to professional activities, each hour we spend working on a given case costs us the opportunity to work on another case. To the extent that we work more than “x” hours on professional matters, each hour we work on a case has a cost: less family time, less personal time, etc.
Our time. Our time, and the time of those who work with us, is limited. Our firm keeps track of time in all cases, including contingent fee cases. After almost 25 years of law practice, I have a good idea what it costs in time and money to prepare and try a case the way we prepare and try cases. I know that, other things being equal, it costs more to try a multi-defendant case than it does a single defendant case. I know it takes longer to prepare a multi-defendant case than a single defendant case (in part because of increased scheduling difficulties). I know that preparation of a case in an unfamiliar area of law costs more time and increases the risk over that of a case where I am intimately familiar with the law. I know that cases involving out-of-town experts cost a lot more than cases with local experts, not just for airfare and hotel bills but also because of the time it takes to go back and forth. And, because I have kept track of time for almost 25 years, I have a good shot at coming up with a decent estimate about what it will cost (in money and time) to try a case before I accept representation in that case. (I also know I am an optimist and that my estimates will almost always be low, and I take that into account in determining which cases I accept.)
Therefore, I suggest that the acceptance of any case has to take into consideration the likelihood of recovery, the potential amount of recovery, and the amount of time and money it will take to get there. If you are not thinking about those things, I suggest you start. Know that in the beginning that unless you have historically kept time in contingent cases you will be probably be wrong by at least half -- i.e. your actual investment of time and expenses will be no less than double what you expect on the front end.
Of course, some of this assumes that the people in the office will be fully employed even if the particular case you are evaluating is rejected. If there are people sitting around with absolutely nothing to do it is true that you will be incurring those costs whether or not you accept the case (assuming everyone continues to work with you). But the fear of people not having enough to do is part of the problem. We tend to make our worst case acceptance decisions when we are not “busy.” If the phone hasn’t rung with a good case in a couple days or a week or a month and then a tough liability case comes in with significant damages we tend to jump at it.
This is usually a mistake. I would suggest to you that we make our best case selection decisions when are “busy” and our worst case selections when things are “slow.” (Exception: we make bad decisions when we are busy after we let potential cases sit around too long and then feel forced to file them because of an upcoming statute of limitations.) We must resist the temptation to jump into cases without appropriate reflection during “slow” times. A full file cabinet (or 50 of them) is not necessarily a sign of good things ahead; if we are not careful, it can be a sign of disaster.
Let me hasten to add that I am not trying to turn our profession into a "business." What I am saying is that if we don't manage our time, our expenses and make informed judgments about case acceptance (1) we won't be in our profession too long; or (2) we will stay in our profession but will see an unnecessary increase in our stress level as we try to juggle financial problems that could have been avoided through planning.
Nor am I suggesting that you should only take "easy" cases, that you should not do pro bono work, or that you should not accept what I call "cause" cases (cases that are almost certainly not financially viable but that you believe are cases that need to be brought). If you wait for “easy” cases, you will go broke. And, concerning pro bono or “cause” case decisions, I urge you to appropriately classify those cases at the time you accept the case, not before a three-week trial when you have $100,000 invested in experts, $300,000 invested in your time and that of your co-workers, your house is tied-up with a third mortgage, and you need to settle two whiplash cases in the next 48 hours if you are going to meet Friday's payroll. Pro bono decisions should be made on the front-end, not the back-end, of a case.
You should take a "cause" case when it fits into the overall caseload of your practice or, in other words, when you can afford to work on it and take the economic hit. This will, by definition, limit the number and/or size of this type of case you can take on at any one time.
I submit that there is absolutely nothing wrong with that -– you have no obligation to work yourself into physical or financial ruin simply to advance social welfare. It is perfectly acceptable, and in fact admirable, to do only enough fee-generating legal work to permit you to do as many “cause” cases as you can possibly accept, and if that is the type of law practice you want you should say so and do it. The point is that the decision of what type of practice you want should be a conscious one and should be made before you accept cases, not afterwards. If you don’t define your practice consistent with your values and needs at any given time in your life, you will find yourself resenting the acceptance of the “cause” cases and those cases will probably be neglected as you struggle to keep the rest of your law practice and life together. That result does not do anyone any good. If you really want to advance the cause of social justice but lack a trust fund or other means of support, the best way to do so is to accept only that amount of “cause” work that you can do it a prompt, efficient, and competent manner.
As you go through the process of deciding to accept a case, think about these things:
- Who is the plaintiff?
- Do I want to sit next to this person at trial?
- Who is the defendant?
- What are the warts and the flowers?
- Is it possible for the defendant to settle this case or must the defendant try this case?
- What are the facts?
- Not just your client’s version – the facts from objective sources.
- Do I need experts?
- What do they say?
- What will my opponent’s experts say?
- What are the injuries/losses?
- What was the prior condition of the plaintiff?
- What are the economic losses?
- Can they be proven?
- Can the jury get angry?
- What is the law?
- Do I have to make new law? Can I make new law?
- What is the venue?
- Can I win this case in this venue with this plaintiff? With this defendant?
- Who is the judge likely to be?
- Can I get a fair shake on discretionary rulings?
- How quickly can I get to trial?
- Can I keep body and soul together in the meantime?
- Will my client still be alive?
- What about case expenses?
- How many depositions will I have to take?
- Where do I have to travel?
- How many experts? Where are they?
- Will I need to spend money on focus groups/trial consultants?
- Is any judgment I obtain collectible?
Now, in light of all of those things and weighing them as objectively as possible, ask yourself this: Is this a case I should accept as a vehicle that will provide a reasonable rate of return for the money (in dollars and time) that I am likely to invest it in? Should I accept this as a “cause” case, knowing the economic return is not likely to be present but it is a case which I want to handle on limited-financial-return basis? Should I accept this as a pro bono case, knowing that I will make no money on it but will accept it because, for me, it is the right thing to do? Or, is this case one in which I lack either the experience necessary to economically prepare it or am unable or unwilling to risk the monies necessary to properly prepare it? If so, you should associate another lawyer. I submit that if you go through this thought process you will get an appropriate mix of these cases in your office, improve your financial stability, and reduce your stress.
I recognize that this may sound like I am a cold-hearted jerk. But I believe that we have a responsibility to our existing clients, to our employees, to our families, and indeed to ourselves not to jump into every case that has a sad story but nothing more. Unfortunately, there are lots of sad stories. Our office turns down hundreds of cases every year, almost every one of them is a sad story, and many of them are downright tragedies. It tears my heart out to have to turn a potential client away simply because the case lacks sufficient merit and / or collectible damages to justify accepting the case into our firm.
The only way I can rationalize this (and I acknowledge the fact that this is a rationalization, but I submit that it is an entirely appropriate one) is that when I make a decision to refuse representation in a case that is not economically viable for our practice I am not just talking about making (or saving) money. Every hour we spend working on cases that have a ten percent chance of recovery we are taking away hours from maximizing the value of the "good" cases. Those other clients with “good” cases have the right to expect that we will take reasonable steps to maximize the value of their cases. If we spread ourselves too thin we will affect our ability to work on those “good” cases and risk harm to those clients. The harm may never be seen or it may not be readily measurable. It may mean less preparation for a deposition than we would like to do. It may mean a six-month delay in a trial date because of workload or the failure to declare an expert on time. It may mean spending a little less time preparing an expert than we might otherwise spend. It may mean less client communication because we simply do not have time to pick up the phone and explain what is going on. At the end of the day, all of these things can potentially impact the result in the case our client has entrusted with us.
Poor case selection may mean that we increase our number of work hours and thus take time from our families. There are ball games to attend, parent-teacher conferences to participate in, and homework that needs a guiding hand. Family vacations create a lifetime of memories, good ones and bad ones, and when mom or dad spend all their time on the computer or cell phone taking care of business on vacation, the memories are not likely to be good. (And even that assumes that you take the time to go on vacation.) Why would we want to sacrifice this time at such a great cost for a case that makes no economic sense?
Finally, we are taking away time from ourselves. Time is our most scarce resource. We can become more efficient, but we cannot make more time. Most of us who rarely work by the work by the hour are already squeezing every second out of every minute out of every hour out of every day - we cannot afford not to do so. So, we have to determine where we spend our precious non- working, non-family hours. Too much work under too much pressure affects our health and the quality of our life.
It is hard to learn the lesson that we cannot help everybody. Unfortunately, we should emulate a good oncologist: he or she should have concern and empathy for that person with Stage 4 pancreatic cancer, but he or she must accept the fact that it is extremely unlikely that the cancer will be cured. As a doctor, you can ease their pain. You can treat the patient with dignity and respect. Perhaps you can (with permission) try an experimental treatment that may help another patient a generation from now. But there are some things we just can't fix. We would love to be able to do so, but we just can't. We need to accept things that are out of our control and channel our efforts toward things we can.
The bottom line is this: case selection decisions should be made after conscious reflection, not on reflex. The goal for many of us who represent plaintiffs is not just to make money, but to use our skill as advocates and the money we make from our labor to improve the world in which we live. I submit that in the long run we can only do that by making intelligent, thoughtful decisions about the “for profit” cases we accept; doing so will allow us to take our resources and use our time to advance our social concerns though other cases or community involvement.
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
The question of what tort law students should be taught that they're not taught is a tricky one, in part because there is no one "torts class." My torts class at Chicago got split between two different professors, and they had entirely different approaches, lecturing styles, views on class participation, and editorializing. A class using the Farnsworth & Grady casebook is going to have a different view of the world than a class using Epstein's casebook, and both will see things that aren't seen in more conventional casebooks. Too, "Torts" is a big subject; the type of tort law seen by top-six law-school graduates going to work at big firms is a different animal than day-to-day auto-accident PI work, and problems with the one may or may not be problems with the other. For example, I agree with just about everything Arnold Friede says, but, on the other hand, many many law students will never see a consumer class action in their careers.
But let me throw two ideas out there. First is the concept that the "chilling effect" spoken of quite aptly in cases like New York Times v. Sullivan applies to more than just free speech, but also to positive economic activity. Perhaps we as a society are willing to accept the cost to jobs and pharmaceutical development and quality of life that comes with unbridled tort liability, but that should be a decision made by the elected representatives of the people, rather than something imposed by fiat by a judiciary following the whims of law professors and activists. I won't say that every law school fails to teach this (Emory's Paul Rubin and FSU's Jon Klick assured me otherwise at a recent panel I was on), but too many lawyers I communicate with seem unaware of this concept.
As I was trying to put into words my second idea, I came across a very recent Frank Easterbrook opinion where he does it much better than I would have:
"[There are] problems potentially caused by comprehensive discovery. A large firm... with thousands of employees generates mountains of internal paper. Some of the employees are bound to take almost any view about almost every subject."
Someone can go through three years of law school without understanding the degree to which the trial of a case with a corporate party is really all about this game of document-search and construction of a fiction around supposed smoking guns. I think it's pedagogically important to recognize this, because it leads to other questions that are important and underexplored in law schools. Is the adversary system well suited to resolve truth in the face of such game-playing? If not, what are the costs of the errors? Might there be questions or entire classes of questions where the judicial system is bound to make things worse? If so, what does that imply for the increasing use of the tort system to resolve public-policy questions?
This post is part of the series of guest posts addressing various authors' views of what should be taught in torts courses.
Dave Swanner is a plaintiff's attorney with the second trial related blog in the country, SCTrialLaw.com. He's a sole practitioner and used to teach interrogation for the Army.
Hmmm...... How about how to be a lawyer? I think that would be a good start. The Socratic method was fine in 1900, but by 2006, don't we have better learning methods?
I went through a year of Contracts class and never saw a contract. I went through a year of Estates and Trusts and never saw a single will or trust document. I sat through an Employment Law class and have no idea how to file or defend an Employment Law action.
I sat through a full year of Corporations, yet had not seen any of the basics of incorporating a business or the typical problems facing a business that they might need a corporate lawyer for.
Seriously, shouldn't law school do more than teach you the law? Shouldn't it teach you to be a lawyer? Medical school teaches their students how to be doctors. Business schools teach their students how to run businesses. People with degrees in education learn how to be teachers.
The socratic method allows a large number of people to be taught by asking them to divine the messages of the cases and then the professor runs through hypotheticals changing the facts to see how that would change the case law.
I went to law school in the pre-internet days. Where the black letter law was not available. We spent a lot of time reading cases. I think that's important. But what is also important is learning how to apply the rules in the book to real life.
I think after the basics are learned, that the class can work on group projects. Bringing an action and defending an action. You can learn things from both sides. What would those group projects entail?
The plaintiff's side reviewing a series of cases, to determine which ones they want to represent. One of the ideas being, for the students to learn some of the rudimentary functions of case selection. Whether there are damages, liability, and an ability to collect. It also would not hurt to be able to assess the potential client as well. Some people are their own worst enemies and submarine their own cases.
Once a case was selected, both sides could pick from potential witnesses. Specially prepared 'depositions' can be provided to them based on which witnesses that are picked. The facts could be balanced so that neither side has a slam-dunk.
Then based on the witnesses and depositions, the plaintiffs side can identify their damages, and what is needed to do a case workup for their client. The defense can focus on liability aspects and what will be needed to do a case work up on their side.
The sides can prepare opening statements and closing arguments. If there is time, you could role play the witnesses and have either the teacher or the class vote on who would win and what the verdict should be. Or for real fun, bring in some volunteers from the real world, pay them $50 for the afternoon and have them listen to both sides and watch them deliberate.
I am talking about more than doing a mock trial as in moot court. I'm talking about learning how to do a case workup. How to learn what's important, what's not important, what some of the pitfalls are and what can be done about them. Packaged the right way, this can be done without an emphasis on the oratory skills. I want the students to learn what they should be doing, even if they have don't yet have the experience to perform at a high skill level.
I used to teach interrogation for the Army (this was back when we followed international law and were aware that torture didn't work). Our instruction was half platform instruction and half roleplaying. Actively role playing interrogations was a much better way to teach the students than lectures. We had pre-packaged information for the students to learn, but that wasn't too challenging. After all, they were still student interrogators.
I've attended may fine ATLA seminars where they have had sample information, pre-packaged information, including witness statements, expert reports, photographs... to give everyone a balanced program to work from and that everyone would be working on the same sheet of music.
I think law school should do more than teach the law. Law school should teach their students how to be lawyers.
Peter Nordberg is a shareholder in the law firm of Berger & Montague and runs Daubert on the Web.
Given that I run a little website on Daubert, people might assume that my main prescription for law school curricula, and for torts courses in particular, would involve more material on expert evidence. But I doubt that idea would do much good, unless the students had better preparation than may be typical for law school matriculants.
So let’s give them a required first-year course in Logic and Inference instead. We want lawyers to have mastered these arts. Yet most students don’t study them in college, and we don’t teach them in law school – not explicitly or directly, anyway. My law school experience at the University of Pennsylvania in the 1980’s is admittedly dated but probably remains typical. There was much self-congratulatory bombast about “thinking like a lawyer.” Everyone seemed to equate this with thinking very, very hard – much harder, at least, than was thought to be the collegiate norm. Yet the curriculum was oddly reticent about defining the forms of inference deemed legitimate and illegitimate. As a result, our efforts to “think like lawyers” were largely undisciplined. We mostly went about it by wrinkling up our brows, and squinting very hard, while thinking pretty much as we always had.
As it happens, lawyers have no monopoly on the study of valid forms of inference. The issue has been investigated by philosophers and logicians for millennia, and they have made especially valuable progress over the last hundred years or so. Law students should be given technical training in how to spot a valid or invalid syllogism, how to identify (and avoid committing) the standard logical fallacies, and how to disambiguate imprecise propositions. They should know their way around modus ponens and elementary principles of quantification, and they should be equipped to battle the law’s repeated attempts to seduce their minds with spurious invocations of the Law of the Excluded Middle.
If there’s time left over, we might give law students some bonus units on statistics, epistemology, and the sociology of knowledge. Statistics, because a nodding acquaintance with statistical modes of inference is increasingly an indispensable component of modern professional literacy. Epistemology, because lawyers should be professionally preoccupied with the question of what constitutes justified true belief. Sociology of knowledge, because lawyers should also be interested in how social forces shape the structure of knowledge and information, and should learn not to confuse the study and analysis of that topic with a simplistic relativism.
None of this, obviously, is uniquely germane to the tort curriculum. But classes on tort law do often focus of issues of High Policy, and law school is not too early to start acculturating students to the concept that discourse on such issues is more enlightening, when it is closely reasoned and reflects an intellectually critical outlook.
Monday, August 28, 2006
Marshall S. Shapo is Frederic P. Vose Professor, Northwestern University School of Law
I want to start by providing a historical frame for these remarks, which will reveal among other things my partisanship for Torts, which I regard as the most wonderful of subjects. When I began teaching Torts in 1965, it was a five or six credit required course almost everywhere and mostly taught in two semesters. Now, typically, it’s only a one-semester course of three or four credits. Although I recognize that the law has exploded in many directions in the last generation, I find this ironic. The practical applicability and density of tort law has expanded considerably, to a point that this aficionado would require nine credits if he could.
I spend enough time on my own casebook (Commercial: 3d edition, co-authored with Rick Peltz, to be published Augsut 2006) that I don’t look systemtically at the others. And I don’t see many other people’s syllabi. So I don’t know just what is and is not taught in other people’s courses around the country. But I will take some guesses, and allowing for a lot of different approaches that do not cover certain kinds of material, I will respond by saying what I think should be taught that either is not taught or is not taught enough. I do this—essentially highlighting some personal preferences—with the understanding of how difficult it is for people to jam more material into already overcrowded syllabi.
1) I think a first year course should introduce students to section 1983. What could be more tortious than an injury inflicted by a government official? The subject is certainly quantitatively important and it can add, early, an extra dimension to the way students think about injuries. I insert a Supreme Court decision in an early section on intentional torts, and I conclude my elective Torts II course with the first great 1983 case, Monroe v. Pape, and updating material.
2) Damages are literally the business end of Torts, and I introduce my elective course with a unit on damages. This is material that is both practical and intellectually challenging because of the relative incoherency of the decisions, particularly on review of damage amounts. Damages also provides an excellent platform to introduce “tort reform,” because in practice a lot of tort reform focuses on provisions like caps. I think it is worth squeezing in at least an hour on damages even in a compressed one semester course, if only to sensitize students to the importance of the topic.
3) The business framework of Torts is insurance. I use a little bit of text material to introduce the subject, and I make fairly frequent references to it in class.
4) I believe that even in tightly packed introductory courses, it is important at least to touch on how tort law relates to science and medicine, including proof of both biological and scientific causation. Daubert will certainly be standard fare in Evidence, but it has become pretty fundamental in many zones of tort practice.
5) I tend to pervade first semester Torts with procedure—a lot more than when I started teaching. From very early in my first semester course, I place cases in their procedural framework and insist on some literacy about the basic motions. Since procedure teachers are all over the lot with respect to when they introduce the fundamentals of civil litigation, I have come to think this is necessary. (Commercial: a very compressed review of basic procedure appears in Helene Shapo & Marshall Shapo, Law School Without Fear ch. 5).
6) Torts is a superb introduction to the impact on the individual or “concentrations of political, economic, intellectual, and physical power.” (See Marshall Shapo, Changing Frontiers in Torts: Vistas for the 70’s, 22 Stan. L. Rev. 330, 340 (1970)). No citations are needed to prove that this is a central challenge of modern life, and it is a theme that can be employed interstitially.
7) “Interdisciplinary” themes. Frankly, we’re doing enough in one-semester courses—for many students, more than enough—if we can introduce students to basic doctrines, the basic structure of litigation, and the plasticity of language. And I believe that these things are still absolutely fundamental. But Torts operates in a complex world of ideas and approaches from neighboring disciplines. Basic microeconomic theory shakes up at least half of the typical class. Students should be exposed, typically in the context of negligence doctrine, to not only Learned Hand, risk-utility, and cost-benefit tests—but yes, to the basic insights of the Coase theorem. What all these concepts teach, as I wrote more than thirty five years ago, are “the kinds of weighing that torts has always taught the best.”
The insights of feminism provide a nice counterpoint, involving both individual and social concepts of fairness, as well as behavioral reality. This leads to my belief that students also should have at least an introduction to social statistics and its kissing cousin “behavioral economics,” which at a minimum provide some confirmation of what students know, or can intuit, by living in the world. Example: data on decision-making by patients about surgery and drugs—easily blendable with informed consent.
8) Other social institutions dealing with injuries. I think it is important, even vital, to signal to students that Torts is just one wedge of the social response to injuries. I use a workers’ comp case in the first couple of weeks to introduce statutory compensation systems, which it turns out transfer more money to injured persons than tort judgments. The case I use happens to involve a schizophrenic breakdown, which gives me a two-fer, introducing how Torts deals with emotional life. In both my elective course and a seminar I use the September 11th Victim Compensation Fund, which is a fascinating amalgam of tort-mimicking provisions and comp law. I also wedge out an hour in the first semester to use a Supreme Court OSHA case to introduce regulation.
I see that I have set out a program. I wouldn’t expect anyone to adopt it anything like wholesale. I hope that it may give some of my colleagues in this great enterprise a way to improve their courses, to their own satisfaction and to the benefit of their students.
Arnold Friede is Senior Corporate Counsel at Pfizer. Prior to joining Pfizer in 1998, he served in various roles, including Vice President and General Counsel, at Unilever. He has also worked at the FDA. He can be contacted at Arnold.I.Friede@Pfizer.com.
I remember Mrs. Palsgraf's mad dash for the departing Long Island Railroad. But I have a hard time translating what I learned about proximate cause as a law student 100 years ago in that context to the kinds of proximate cause questions we now see everyday in consumer fraud litigation against pharmaceutical manufacturers.
In addition to traditional product liability lawsuits for personal injury, pharmaceutical "tort" litigation now also typically involves cases brought as putative class actions on behalf of thousands of individuals, and entities such as third party insurance payors, who explicitly disclaim any actual physical harm. They claim that, but for the manufacturer's misrepresentations about a prescription drug's safety or effectiveness, they would never even have purchased or paid for the product in the first place, or, had they still purchased or paid for it despite the misrepresentations, would have paid a lot less than what they in fact paid because its attributes were misrepresented. Accordingly, these plaintiffs assert claims for purely economic harm that sometimes dwarf the personal injury claims in terms of the magnitude of the potential monetary damages, often involving billions of dollars, such as in the Vioxx consumer fraud litigation. These consumer fraud actions are now ordinarily brought under state statutes that prohibit deceptive practices and under related common law theories such as fraud, misrepresentation, unjust enrichment, and the like.
In this context, we need a "torts" curriculum that disaggregates proximate cause from its personal injury roots and shows how, as a policy and legal matter, it must also be imported into the world of statutory torts, such as those we confront in pharmaceutical consumer fraud litigation. The Supreme Court has repeatedly reaffirmed the role of proximate cause in a variety of legal contexts. How in the world can an alleged misrepresentation through, say, direct-to-consumer advertising of a prescription drug, proximately cause the plaintiff's economic injury when, in fact, a learned intermediary -- the physician -- is the final decision maker? How do concepts of reliance and causation fit into the proximate cause inquiry outside the personal injury context? Conversely, can and has the Legislature simply legislated proximate cause out of existence in the context of statutory consumer fraud claims? Is that a good thing? Is it the right thing?
It seems to me that there is a lot here that deserves attention in the law school classroom.
Judge James M. Rosenbaum is the Chief Judge in the District of Minnesota. I clerked for him.
I am an unabashed fan of the Common Law. If I taught torts – and much to the benefit of young lawyers, I do not – I would ask them to identify the statutes in cases we had studied. The almost invariant answer would be: “None.”
While little emphasized, this is not trivial. Torts is judge-made law, crafted from real experience (OK, set aside Palsgraf). Tort plaintiffs seldom wake the morning of their event looking to wind up in a lawsuit. Defendants usually didn’t sign up for the job, either.
Torts arise from life experiences. Those experiences (if untoward) are ultimately arrayed before a judge who must make sense of them, and attempt to craft a rule and remedy to resolve the problem. Those judge-crafted rules are either good or bad. If good the rule usually stands the test of time, helping others either regulate their own behavior, or at least assure predictable results. If the rule is bad, over time its flaws are exposed and the rule can be modified or completely rejected. This is done by appeals courts, without the inertia of a prior legislative enactment.
I would emphasize humanity’s imperfections, and the law’s efforts to deal with them. I would, then, try to show the Common Law’s flexibility, as opposed to the rigidity of statutes.
Robert W. Bailey, MD, FACS, is a Professor of Surgery (former) & third-year law student at Florida International University College of Law.
My first year law school (Fall 2004) is still somewhat of a blur in my mind. I am sure that as time passes, the fog will slowly disappear and more ‘fond’ memories will appear. If it had not been for my excellent mentor in Torts, Professor Andrew McClurg (aka “Tortman”), I am not sure just how many fond memories I would have at this point.
During first-year Torts, I remember being struck by how the law seems to have continually modified itself to create specially crafted rules to allow recovery from healthcare professionals. It seems as though every time a situation was identified where proving an essential element of negligence would be difficult or impossible under existing rules, the law was rewritten so that the plaintiff could recover. Two examples that come to mind are Ybarra v. Spanguard, allowing the plaintiff/patient to circumvent the traditional control element of res ipsa loquitur, and Herskovits v. Group Health Cooperative of Puget Sound, allowing recovery under a “loss of a chance” theory where the plaintiff/patient could not prove traditional but for causation. I was amazed at the creation of such rules, as well as the doctrine of joint and several liability, and the higher standards for professionals, especially for physicians. This phenomenon appeared nothing less than outright discrimination geared toward allowing recovery from a special class of persons. But what did I know at the time? I was just a lowly 1L with only a layperson’s perspective, at best, to constitutional issues and tort law. Despite my early perceptions, I was able to work through Palsgraf (I think) and successfully complete my introduction to the field of tort law.
By the end of my second year, I was deeply entrenched in my class on Products Liability, also taught by our esteemed colleague, Professor McClurg. The most striking recollection I have of that class was just how quickly the law students had learned, almost instinctively, to find fault, even where none was readily or even legally apparent. Pardon the metaphor, but it was like watching a school of baby sharks getting their first scent of ‘blood in the water.’ Even in factual descriptions where the defendants seemed free of any liability under existing law, the students became very adept at finding some basis for a claim in almost every case or problem we studied.
In response to this emerging feeding frenzy, I suggested to my classmates that we must always keep in mind that physicians and pharmaceutical companies are working very hard to benefit humankind by saving lives and stemming the course of severe, life-threatening illnesses. I went on to mention that there did not appear to be very much discussion about the defendant’s ‘point of view’ in either my first-year Torts class or in our current Products Liability course. Professor McClurg did always welcome and encourage my attempts to speak up for the defense side. But, as one might expect, my remarks to my fellow students were met with mixed reviews and even outright verbal attacks by one student during class.
How could I, a fellow lawyer-in-training, ever suggest that a personal injury lawyer even consider the defendant’s point of view? Torts and Products Liability are courses about personal injury and plaintiff suffering. Our single, most important goal as lawyers should be geared toward finding fault and getting a recovery for the poor, helpless plaintiff going up against the large, onerous and profit-seeking insurance and pharmaceutical companies.
So what else should be taught in the area of Tort law? Lawyers and law schools need to insure that a more balanced approach to Torts is presented in law school. A well-rounded depiction of the adversarial roles involved in civil liability cases would go a long way toward a more equitable result. However, the educational approach to the teaching of tort law is not the only issue. As some of the other commentators to this posting have already lamented, the area of tort reform has resulted in substantial but often unwelcome changes to existing laws. These changes have come about, in part, as a result of public perception of the ‘greedy’ trial lawyer and the multitude of frivolous law suits. While the topic of tort reform will continue to fuel discussion for years to come, I would suggest that unless lawyers and law schools ‘step up to the plate’ and take the initiative to correct some of the existing injustices, the legislators will continue to do it for them. If so, the lamenting lawyers will have no one to blame but themselves.
Having spent the majority of my professional career involved with the development of new surgical technology, the dilemma facing the innovators of our society today are enormous. As a starting point, it is clear that new innovations and technology benefit our society as a whole, however, with new technology comes an increased frequency of law suits. The following excerpts from a law review article help to demonstrate the conflict and paradox that many health care providers and pharmaceutical companies now face:
Under the economic Learned Hand formula, courts impose liability only when the defendant has stopped at a point where further doses of precaution would still cost less than the value of the reduced risk they yield. Therefore, doctors and everyone else should find it cheaper to use the precaution necessary to avoid liability. How do we reconcile this theoretical result with the observation that courts are indeed finding people negligent and that the number of claims against many medical specialists is increasing at an alarming rate? Indeed, the liability explosion among doctors is especially puzzling because market forces and insurance reimbursement systems usually produce excessive medical precaution. The economic theory of negligence has never explained how defensive medicine and a malpractice explosion can exist simultaneously.
Technology can conquer risk from nature, but technology cannot wholly eliminate risk. Death seems to have its own grim economy in which risk is conserved. When new technology creates risk, a substantial fraction usually comes from somewhere else. If the risk added by a new technology does not correspond to some other subtraction -- from nature's toll or from a substitute technology -- we are frequently thinking of sinister examples (e.g., Nazi Germany), not the normal ones. The purpose of most technology is to delay death or at least improve the quality of life. Therefore, although most technological risk comes from somewhere else, new technology usually reduces the sum of all risks, including natural risk. (Emphasis added)
"Risk-loading technologies" are much more significant to the present problem. They actually increase the amount of risk regulated by the negligence system, either by appropriating it from nature or from some currently unregulated activity. Truly revolutionary machines often transform risk from nature into potential liability. For instance, the invention of the dialysis machine converted natural risk into new potential liability. Before its invention, people were dying from kidney failure, but they were not suing their physicians. Now, if people die after using a dialysis machine, they potentially have a negligence case. The dialysis machine thus reduced the total amount of risk in society (which includes natural risk), but increased the amount of regulated risk.
Perhaps …Judge Learned Hand's 1932 opinion in The T. J. Hooper [may help to explain]. The ships would have been saved if they could have heard the weather report on the radio -- a relatively new invention. Although it was not customary for ships of that type to have radios, Judge Hand though that courts should take a stand in favor of progressivism. In his famous phrase, "a whole calling may have unduly lagged in the adoption of new and available devices.
Many explain the medical malpractice crisis with the same theory. Before the new technology, distressed fetuses could not be saved. Now there are new tests and procedures to identify problems early. Unfortunately, laggard doctors do not use the new tests as soon as they are available. In the interest of progressivism, courts should impose negligence liability for this failure.
Mark F. Grady, Why Are People Negligent? Technology, Nondurable Precautions, and the Medical Malpractice Explosion, 82 Nw. U.L. Rev. 293 (1988).
Andrew McClurg is the Herbert Herff Chair of Excellence in Law, Cecil C. Humphreys School of Law, The University of Memphis.
Thanks to Bill Childs for developing the idea for this interesting discussion, assembling such a distinguished and diverse panel of contributors, and inviting me to participate. Here are three topics I don’t believe get enough attention from Torts professors in the classroom:
1. The common law tradition is at risk in the “tort reform” era. We need to be talking a lot more about the process of “tort reform” (although the content is also important). I doubt that most of today’s law students appreciate how rapidly and fundamentally the orthodoxy of common law decision-making in the tort arena is being altered by tort reform legislation and preemptive or potentially preemptive administrative regulations. Torts casebooks still focus almost exclusively on common law. Sure, the books and the professors who teach from them talk a little about tort reform, but most students probably emerge from Torts with a distorted perception of how tort law is being fashioned in the twenty-first century.
Students need to understand that a radical reordering of the hierarchy of tort law formation is taking place in the U.S. Whether they’re for or against tort reform, students should be encouraged to think critically about a process by which a hundred years of considered and incrementally developed common law can be spontaneously erased and/or rewritten by legislators or bureaucrats.
As part of this critical thinking process, students should be taught to question the content of both sides of the tort debate, so much of which occurs in a fog of distortion and misinformation. More and more students arrive at law school believing the tort system is completely broken, but most of them don’t have any foundation for their opinions other than tired anecdotes like the misunderstood McDonald’s coffee spill case or, worse, cases that never even happened, such as the apocryphal plaintiff who used his lawnmower as a hedge trimmer or the one who set his RV on cruise control while he went back to make a cup of coffee.
Of course, both sides in the debate are guilty of using fallacious rhetoric and both sides should be exposed. The pro-reform rhetoric worries me more because: (1) it leads to frequent, sometimes dramatic and ill-considered action, rather than only inaction; (2) has managed to lay claim to the label of “reform” even though the movement is wholly one-sided, ignoring defects in the tort system that adversely affect plaintiffs (wrongful death damages being my pet example); and (3) frankly, has been much more effective than the ho-hum rhetoric of the “greedytriallawyers,” rumored to be coming out as a single word in the next edition of the Oxford Dictionary.
While it probably sounds like I’m an opponent of improving the tort system, that’s not accurate. As a longtime disciple of James Henderson and Aaron Twerski and their fairly conservative brainchild, the Products Liability Restatement, when I teach Products Liability, I probably come across to students as pro-manufacturer. My concern is that the common law tradition, which I respect and cherish, is endangered. I believe, as Guido Calabresi wrote in A Common Law for the Age of Statutes, that there are benefits to the “slow, unsystematic and organic quality of common law change.”
In writing a recent comparative law text (see below), it occurred to me that our common law tort system increasingly resembles a civil law system, in which law emanates primarily from statutes and regulations, rather than from courts. Hey, there’s an idea. If legislators knew that’s the way they do things in France, they might change their minds … but I digress.
2. The parties in tort cases are real people. This point ties in to the ongoing discussion Bill has featured about the need to humanize tort law for students. We have fun with tort cases and we should because they are fun. But along the way, students need to be reminded that the cast of characters in tort cases are human beings, some of whom have suffered horribly. My own appreciation of this point came from a personal event I wrote about in Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages [PDF]. I won’t belabor the case for humanizing torts here, but instead refer everyone to Bill’s several posts on the topic: 5/2/06, 3/14/06, 3/13/06, 3/10/06, 3/10/06, 3/9/06, 3/7/06, 1/17/06.
3. Comparative law. “Globalization” is, of course, a popular catchword in modern American legal education. Once an obscure blip on curricular radars, more and more U.S. law schools are developing courses and programs in international and comparative law. Nevertheless, for most U.S. law professors, comparative/international law seems, well, foreign, not to mention inaccessible, uninteresting, and unimportant to their lives or the lives of their students.
I shared that view when I moved to Miami in 2002 to become a member of the founding faculty at Florida International University College of Law, South Florida’s public law school. (I recently moved to The University of Memphis). Uniquely, the FIU College of Law curriculum requires that all courses, including domestic law courses, include a comparative and/or international law component. Arriving at FIU I had no background or interest in comparative or international law.
Living and teaching torts and products liability in Miami changed my mind by greatly enlarging my limited world view. Miami-Dade County is a cultural melting pot in the truest sense of the term. Fifty percent of the county’s 2.3 million residents were born in another country. Already, FIU’s “majority-minority” student body has included students born in forty different countries. This amazing student diversity demanded that I broaden my torts horizon.
Ahh, but that’s Miami, you say. It’s not like that where you live. Not yet, but U.S. demographics are changing rapidly. The U.S. Census Bureau predicts that the U.S. will be a majority-minority nation in fifty years. One of my former colleagues at FIU, Ediberto Román, was fond of saying that “the rest of the country is going to start looking more and more like Miami.” He’s right. At FIU, I think I saw the future of legal education, and comparative/international law is part of it.
Not wanting to be left behind by the times, I delved into comparative tort law and ended up co-authoring Global Practical Tort Litigation: the United States, Germany and Argentina (A Contextual Approach), which will be published in 2007 by the Carolina Academic Press. (Forgive the shameless plug.) One of my co-authors, Luis Sprovieri, is a partner at Baker & McKenzie’s office in Buenos Aires, where he oversees the firm’s products liability group for Latin America. In the conclusion to our book, Luis speaks effectively to why U.S. law schools should be teaching comparative tort law to their students:
Many U.S. law students still may not be aware of the rapidly changing global situation with regard to the practice of transnational law. You are, whether you know it or not, preparing to practice law around the world. In my practice, I witness daily the cliché that “the world is shrinking.” Many of the clients I work with are U.S. companies engaged in worldwide business. I often work closely with their in-house and outside counsel. Coping with the challenges of the borderless marketplace will depend in part on one’s ability to understand foreign law, culture, and legal traditions. All U.S. lawyers would benefit simply from having some clue about what their foreign colleagues and adversaries are talking about when, for example, they make references to basic procedures and principles of the civil law tradition. In other words, international training will pay dividends to today’s law students.
I think he was trying to say, nicely, that most U.S. lawyers are, in fact, clueless about even the most basic principles of the civil law tradition, which is both much older and more widely distributed worldwide than the common law tradition. I was until recently.
Introduce your students to worldwide tort systems and learn a lot in the process. In composing our comparative tort litigation book, I not only discovered fascinating similarities and differences in how tort cases are handled in other nations, I also gained a fresh and deeper appreciation for the U.S. common law tradition.
Thursday, August 24, 2006
Wednesday, August 23, 2006
I just realized I hadn't even linked to the D.C. Circuit case about tax consequences of non-physical injury damage recoveries. It's a big deal and better covered by Paul Caron than I could possibly hope to. Here is his first post, and here is today's, linking to coverage elsewhere.
(Or can two count as "galore"?)
Couple of interesting recent products cases.
In the first [PDF], the Michigan Supreme Court held (over two dissenting votes) that a hair oil manufacturer was not liable for failing to warn about the risk of organ failure from ingestion of the hair oil, concluding that the fact that ingestion raised a material risk was obvious to a reasonably prudent user. The purchaser's eleven-month-old child ingested the product and died of organ failure about a month later. The product carried warnings against spraying it near flame, but did not have any warnings about ingestion or about keeping it away from children.
Of note, the court concludes that the user need not understand the specific risks -- only that there are material risks associated with the conduct (here ingestion). The dissent focuses on this, asserting that the majority has let the defendant off the hook based on the notion that knowing one risk is equivalent to knowing all risks. The opening to the dissent:
Michigan consumers beware: If you know or should know that there is any material risk from using or accidentally misusing the product you buy, then the manufacturer of that product now has no duty to warn you of any risk at all, even when the potential harm you knew of is not the harm you ultimately suffer. Stated differently, if you know or should know that if, for example, you accidentally drink or inhale a product, you may become ill, then you are charged with knowing that if you accidentally drink or inhale that product, you could die. And the manufacturer need not warn you of either of those risks—illness or death. According to the majority, the obviousness of any material risk, such as that of illness, is identical to and has the same effect on your behavior as the obviousness of all risks, including death.
In another case, Judge Kennedy of the District Court for the District of Columbia dismissed [PDF] a putative class action against various dairy and retail defendants, contending that milk producers should have warned against gastrointestinal symptoms from lactose intolerance. The plaintiffs contended that, though lactose intolerance is common, it is frequently unknown by those who suffer from it:
Notwithstanding the vast number of people allegedly afflicted with lactose intolerance, plaintiffs insist that the extent to which people suffer from this condition has been minimized by the milk industry and “the government’s marketing efforts.” Id. ¶ 6. Plaintiffs maintain that defendants, with the aid of the government, have propagated the myth that milk is a necessary part of a healthy diet while simultaneously stifling information about the incidence of lactose intolerance.
The plaintiffs sought warnings such as these:
WARNING—IF YOU EXPERIENCE DIARRHEA OR STOMACH CRAMPS AFTER CONSUMING MILK, YOU MAY BE LACTOSE INTOLERANT. CHECK WITH YOUR PHYSICIAN.
WARNING—LACTOSE INTOLERANT INDIVIDUALS MAY EXPERIENCE BLOATING, DIARRHEA, OR OTHER GASTROINTESTINAL DISCOMFORT FROM CONSUMING MILK. CHECK WITH YOUR PHYSICIAN.
The court dismissed the case based on preemption, noting that labeling of food is within the realm of agencies, and citing the experience with olestra:
In 1996, FDA approved olestra as a food additive. Food Additives Permitted for Direct 7 Addition to Food for Human Consumption; Olestra, 61 Fed. Reg. 3118 (Jan. 30, 1996). As part of this approval process, FDA determined that there was “a reasonable certainty of no harm” with respect to olestra consumption. Id. The determination was made notwithstanding the possibility that olestra consumption could cause “a broad range of GI [gastrointestinal] symptoms, including loose stools, cramping and bloating, fecal urgency, oil-in-the toilet, and anal leakage.” Food Additives Permitted for Direct Addition to Food for Human Consumption; Olestra, 68 Fed. Reg. 46,403, 46,408 (Aug. 5, 2003). FDA “appli[ed] the statutory standard of ‘safe,’ [and] concluded that none of these effects is harmful to health.” Id. Given this conclusion, the court sees no reason why the symptoms of lactose intolerance—very similar to those exhibited by olestra consumption—should raise any safety concerns. Consequently, the court finds that there is no basis upon which to invoke the safety exception to the FDCA preemption clause. The court concludes, therefore, that plaintiffs’ complaint must be dismissed in light of the express preemption clause in the FDCA.
The court also concluded that there was no duty to warn under Restatement provisions, noting that there is no duty to warn about common and well-known allergies.