Weapon of the Weak

20 January 2016

The Law, In Its Majestic Equality, Forbids The Rich As Well As The Poor To Sleep Under Bridges, To Beg In The Streets, And To Steal Bread.

In his remarks at the opening of the American Museum of Tort Law, Pulitzer Prize winning historian Eric Foner stated that tort law is “the weapon of the weak.”

What an insightful phrase. Tort law levels the playing field, and lets one injured by the wrongdoing of another go to court to seek justice.

Trials are no simple matter. Each side, represented by lawyers, fights – fights hard – to prevail.

In an effort to make the process more fair and predictable, the law allows for discovery: it gives each side a chance to see the evidence that the other side in support of its claims and defenses. Before trial, each side may require the other side to turn over documents and evidence, and to give statements; to put their cards on the table as it were.

This process lets each side evaluate the case and assess the likelihood of winning at trial. It prevents surprises, and fosters fairness at trial, and settlement before trial.

The parties each assess the case, and have all the evidence needed to try the case, or to settle.

What’s not to like, right?

How does this tie in with tort law as a weapon of the weak?

The plaintiff in any case has the burden of proof. He or she must prove the wrongdoing of the defendant.

When people are injured by the acts of large defendants – multinational corporations, or the government, finding the evidence to prove the case often requires extensive discovery.

There are – or can be – lots of papers to sift through and lots of witnesses from which to take statements. It is not a simple process, and it can be time-consuming. Where in the corporate hierarchy was a given decision made? When? Why? By who? So the plaintiff – the injured individual – has his work cut out for him, trying to find the evidence necessary to win his case at trial.

On the other side, the burden isn’t so heavy. The defendant has less work to do. If it’s a case involving physical injuries, the defendant will need to take a statement from the injured plaintiff and get and review the medical records. It’s still work, but not as much.

What this means, in short, is that the burden of doing discovery does not fall equally on both sides. Very often the plaintiff needs to do more discovery than the defendant – or lose the case.

So full and fair discovery, is an important part of tort law as the weapon of the weak.

Now, though, the Chief Justice of the Supreme Court of the United States, John Roberts, has issued his year-end report praising limits on the process of discovery.

Rule 26(b)(1) crystallizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality:

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”¹

Do you see why this is a problem?

While the proposed limits would nominally fall on both sides equally, the effect would fall most heavily on the injured plaintiffs. For an injured plaintiff, obtaining information in discovery necessary to prove a case is critical – almost literally a matter of life and death. For a corporate defendant, it may be nothing more than an annoyance. So who is to say what discovery is proportional to the needs of the case?

As Justice Roberts’ report states, “that assessment may, as a practical matter, require the active involvement of a neutral arbiter – the federal judge – to guide decisions respecting the scope of discovery.”²

But picture it: The defendant’s attorney says to the Judge – “Your Honor, it’s not fair. The plaintiff is trying to wear us down; seeking document after document, statement after statement. All we’ve asked for are his (or her) medical records, and his or her statement. So why is the plaintiff doing this? Why is he or she being so disproportional?”

And just like that, the Judge may agree, and then limit the discovery that the plaintiff can do.

And what this might mean, is that the plaintiff no longer has the weapon of the weak; can’t get the evidence necessary to prove his or her case. The trial is lost before it even begins.

To be fair, the Rules Committee has made an attempt at preventing blanket objections by the defendants that the discovery is not proportional. The Committee has included a comment that parties may not make boilerplate objections that discovery is not proportional. “Boilerplate” is term meaning standard, or general, one-size-fits-all. So, if the Judges heed the Committee’s note, that means that defendants who wish to limit the plaintiff’s opportunity to discover necessary information will have to work more carefully, and be thoughtful in objecting. This note may prevent defendants from using the new rule to hamper plaintiffs, but at the very least, will require more hearings before the judge. Will the note prevent abuses? Time will tell.

Some experts don’t think so.

A recent New York Times article contained several comments from legal experts on the unfair burden this would pose to plaintiffs:

“This provision will be used to restrict a citizen’s access to the information that often is critical to establishing a grievance, whether it be a civil rights claim or an economic or personal injury claim,” said Arthur R. Miller, a law professor at New York University.

Suja A. Thomas, a law professor at the University of Illinois, said the new rules were too sweeping.

“They were aimed to decrease costs in the cases where costs were out of control,” she said. “This is a very small set of cases.”

On the other hand, she added, the new rules may tie the hands of litigants like victims of employment discrimination. “These are cases where discovery is very important because employers have so much information,” she said.

Stephen B. Burbank, a law professor at the University of Pennsylvania, said the new rules were a poor fit for many lawsuits and will often prove counterproductive.

“Continuing a trend that goes back decades, these amendments take a problem that arises chiefly in complex, high-stakes litigation between corporations, and devise solutions that necessarily apply to all federal litigation,” he said. “As a result, the layers of additional expense that active judicial management can impose make litigation costlier for litigants less able to afford it, including most importantly individuals.”³

For years there have been efforts to weaken tort law, to erode the law, and lessen its protections for people injured by corporate wrongdoing. The new rules may be used as another such effort, and while they seem to be evenhanded, they may harm the right of individuals – people like you and me – to full justice. The rules are a little like that quote from French author Anatole France:

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

Is this really fair? Is it the best that we can do?


¹ 2015 Year-End Report on the Federal Judiciary, p. 6. (Emphasis added.)
² Id., p. 7.
³ Liptak, Adam, “Chief Justice’s Report Praises Limits on Litigants’ Access to Information,” NY Times, December 31, 2015