April 7, 2010
Redesigning the Torts Course
Over at Prawfs, Erik Knutsen (Queen's University) has a provocative post arguing that first-year Torts should be taught as "Injury Law," focusing heavily on insurance principles.
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I've been practicing personal injury law for 30 years and we've never referred to it as tort law because of what you've pointed out. A client walks in with a personal injury not a tort. The client's problem is one of compensation; any more the lawyer's challenge is to know where it starts and where it will end. We look to an auto policy and we have issues of casualty with the at-fault driver's auto insurance. With our clients it's filing under the medical pay and under their health insurance policy (subrogation issues); then it's putting the insurance company on notice of potential underinsured or uninsured motorist insurance claims. If they are going to be off of work for longer than a year there is the issue of Social Security benefits. If they have a disability policy we need to consider long or short term disability and how that might affect any other claims. If the client was injured within the scope of employment the lawyer's job is to make sure the case is being handled in a way that makes it viable under the workers' compensation act of the client's state. And let's not forget credit disability issues so the bills can get paid. With all of that in the works we must be thinking long term about subrogation, liens and of course social security set-off issues. Within the policies of insurance can be different statute of limitations requiring an earlier suit filing date, notice provisions and of course attempts to create liens.
I can't talk from a lofty perch only from the trenches. We are fond of saying that law school professors teach you how to think about the law, but the practicing lawyers teach them how to practice law.
Posted by: Steve Lombardi | Apr 12, 2010 5:39:16 AM