Richard L. Newman, Esq.
We take the law for granted. Everyone knows that if someone hurts you wrongfully, that you can take them court, right?
But at the same time, we are fed a steady diet of attacks on the court system1; and there are repeated legislative efforts to limit access to courts, and tie the hands of juries. Articles have been (and still are being) written, slamming the very idea that tort law has any value, and falsely suggesting that the court system is broken.2 This is not the place to address the falsehoods, distortions and errors in articles of that sort, but rather to consider a thought experiment: What would it be like to live in a country without trial by jury, and without tort law?
Tort law is the law of wrongful injury – the law that comes into play when someone or some corporation is careless, or reckless, or even acts intentionally, and someone else is injured as a result. Trial by jury, of course, is one of the rights guaranteed in the Bill of Rights, and was one of the principles that the Colonists fought and died for, during the Revolutionary War. So both tort law and trial by jury are important, and both have a long and shining history.
And both are still important components in preserving our way of life. For an outstanding article on the value of tort law and trial by jury, see “Lifesavers 2016: CJ&D’s Guide To Lawsuits That Protect Us All.” This publication is the product of the Center for Justice and Democracy, and can be found online at http://centerjd.org/content/lifesavers-2016. The table of contents alone gives a valuable insight into how important tort law and trial by jury are, in making life safer for everybody. Here are excerpts (the numbers refer to the pages in the report):
PRODUCTS, DRUGS AND EQUIPMENT
Pregnancy test produced false-positives for cancer 8
Dietary supplement caused life-threatening stroke 9
Fuel tanker loading equipment lacked safety mechanisms 10
Defective escalator amputated child’s foot 11
Gas well erupted in blast of fluid and gas 12
HMO forced psychiatrists to prescribe psychiatric drugs 42
Patient was prescribed incorrect chemotherapy dosage 43
Nursing home provided inadequate patient monitoring 43
Poor hospital staffing endangered patients 44
Serious trauma patients not taken to trauma centers 44
Bed rail restraints entrapped patients 45
Hospital failed to stock treatment for heart clots 46
ENVIRONMENT, UTILITIES, ROADS AND PUBLIC SPACES
Building fire code violations trapped residents 52
Power line caused fatal electrocution 52
Cruise control policy led to fatal crash 54
Chrome-plating facility emitted cancer-causing pollutants 55
Dump emitted toxic fumes
CRIME, VIOLENCE AND OFFICIAL MISCONDUCT
Police use of excessive force resulted in death 58
Sergeant killed by inadequately trained officer 59
Jail’s failure to monitor inmate with mental health issues led to suicide 60
Man suffered in solitary confinement without trial or treatment 61
Klansmen assaulted teenager 63
Church failed to protect children from molestation 63
Aryan Nation guards assaulted woman and her son 64
Bribery scheme led to issuance of licenses to unfit drivers 65
Elementary school teacher molested students 67
Church ignored and covered up molestation 67
Christian Knights of the Ku Klux Klan members burned down church 68
And remember – this is only a partial list. The entire table of contents is three single-spaced pages. Just the topic headings alone give some idea of the scope of the law: Healthcare, defective products, the environment, crime, even official misconduct.
So let’s get back to our experiment – let us consider life without tort law, and without the right to go to court. What would that be like?
The good news: Nobody could sue you. You could drink and drive, run every stop sign, even try to run people down – and there’d be nothing that anybody could do. Oh, you could get arrested if the police thought that there had been a crime, but since there would be no checks on anyone’s behavior, they might be quickly overwhelmed. And, for that matter, how we define crimes might have to be reconsidered, too.
The bad news: You couldn’t sue anybody either. You’d have no protection from the wrongdoing of other people, or corporations. In our new lawless land, everything could pose a danger, and you’d have no way to protect or prevent the injury, no way to prevent other people from getting hurt, and no one to pay you if they crippled you, or killed your loved one.
Imagine a country where you couldn’t sue. Hundreds of millions of people live in countries like that. We have a name for governments like that.
Your surgeon amputated the wrong leg. Too bad. There’s nothing you can do about.
You bought food that was poisoned, or baby formula that caused your baby’s liver to fail? Too bad. Nothing that you can do about it. Don’t buy it anymore.
Your airbag just went off while you were safely parked, and blinded your spouse? Too bad. You don’t have any right to take the manufacturer to court. Should have bought a different model.
These examples could go on and on. But that is only part of the picture.
There are three benefits of tort law: Compensation, disclosure, and deterrence.
Compensation is money, awarded either by the jury, or by agreement in a settlement. The money is intended to make the injured person whole – as much as money can.3 This includes money for medical expenses, past, present and future, lost wages, past, present and future; and also money for intangibles – things like pain, scarring, paralysis, sterility, reduced quality of life.
Disclosure is equally important. Everything that happens in court is under oath, subject to both the rules of evidence, and cross-examination. And under the glare of trial, bad conduct is exposed. Bad decisions, decisions that trade people’s lives for profits, stand revealed.
And this leads to the third benefit of tort law: Deterrence. A jury verdict can ring around the world, causing bad conduct to stop, and deterring others from causing harm.
Without tort law, without access to the courts, all of that grinds to a halt. People who are injured would not be compensated. If they didn’t have insurance, they would have to pay their own medical bills. No one would repay them for their lost wages, or compensate them for their physical injuries, or their wrongful deaths.
Without tort law, and access to the courts, if somebody hurt you, you’d only have three options:
1. Go to the police, and hope that they think it was a crime worth investigating.
2. Do nothing – just sit there and take it;
3. Retaliate and seek revenge. Nothing quite like a blood feud to make things right.
But it gets worse. Bad actors would have no reason to shape up or change their ways. Without a system of law to hold people, corporations, and even governments accountable, there would be no checks on bad behavior. No quality control; nothing to ensure that food was safe, or that products were well-designed, or that the environment could be protected. If it was cheaper to sell tainted food, and there was no risk of being held accountable, why not sell it?
Of course, one response to this is that the free market would sort all of this out – that those companies selling bad or unsafe goods would soon go out of business.
And yet, there are at least two reasons why that argument isn’t a good one.
The first is the difficulty of figuring out that something is bad. For example, if an unscrupulous merchant decided to sell milk that had been diluted with water, that would a tough one. It would still look, and smell and even taste just like milk. But it would be nutritionally deficient. Mothers might unknowingly starve their babies to death, or until they became malnourished. And by the time they figured out what the problem was, it might be too late. Yes, eventually, concerned moms might figure out which producer was selling watered milk, but how many babies would die before that? And meanwhile (since there would be no system of justice) the unscrupulous merchant would get to keep all the money he made.
The second reason why the free market alone isn’t sufficient to correct this problem is the “race to the bottom.” If there is no penalty for skipping safe design, and manufacturers can make more money selling shoddy goods without any penalty, then why would any manufacturer put itself at a competitive disadvantage by building in safety features? It might be that they could make some money selling safe products at a premium, as luxury goods, but is that the kind of world you’d want to live in? A world where only the rich can get safe wholesome food, medicines, and merchandise, while the rest of us try to dodge unsafe products? No, tort law benefits all of us, because tort law is quality control.
So it sounds like it would be better to have law, and access to courts, than not.
But – Is there a price for this? You bet. That price is simple, but very, very important – responsibility. Responsibility permeates our entire way of life. Each of us is responsible to be a careful driver, to respect our neighbor’s privacy and property. Companies must be responsible too – must take steps to make their products as safe as possible. And tort law, and trial by jury are the two essential mechanisms to ensure that people, and corporations, and governments act responsibly.
But responsibility involves even more than that – the price is even higher. We must be responsible citizens. That means voting thoughtfully, participating in our democracy thoughtfully. And we must, if called to serve, serve as responsible jurors. Jury duty is the most direct form of government that most of us will ever encounter. And service as a juror is one of the highest forms of obligations we have.
Is our system of law perfect? No. But even after all of the efforts to limit and distort it, it is still better than any other system. It has rules of evidence, cross-examination, the right of appeal, and it’s open to the public. All for this price – responsible engagement as citizens.
Of course there are always critics of the tort system, and the court system. Some of the criticisms are well-intentioned. Others? Not so much. Maybe it’s part of an effort by actual or potential wrongdoers to escape responsibility, to avoid being held accountable.
But, as I hope this exercise has shown, a world without tort law, and without access to the courts would be a scary place indeed.
When someone complains to you about the court system, or suggests that we’d all be better off without being able to go to court, ask them to think about this exercise. Ask them if they think that responsibility is too high a price for better, safer world.
1For example, lots of people grumble about “frivolous cases,” but almost no one can actually name any frivolous case, except maybe for the McDonalds hot coffee case, which wasn’t frivolous at all.
2 See, if you can stand it, Freddoso, David, “The Public Nuisance That Is The Plaintiff’s Bar,” Washington Examiner, December 11, 2016, found online at http://www.washingtonexaminer.com/the-public-nuisance-that-is-the-plaintiffs-bar/article/2609096; and also, Freddoso, David, “Tales From The Lawsuit Industry,” Washington Examiner, Dec. 12, 2016, found online at http://www.washingtonexaminer.com/tales-from-the-lawsuit-industry/article/2609198
3 It’s interesting but true – People who have been seriously injured don’t want money. They want a time machine. They want the chance to go back to one second before they were crippled, or their loved one was killed. But we don’t have time machines. Money is all we can offer.