It's No Fun Playing Torts Philip K. Howard
Legal Times, November 15, 2004 Download a PDF of this article as it appeared in Legal Times.
Legal reform has settled into a kind of trench warfare, and the recent elections
are unlikely to change it. Tort reformers rail against frivolous lawsuits. (Who
can be against that?) Trial lawyers talk about protecting the little guy against
corporate abuses. (Who can be against that?)
What's missing is a coherent vision of how justice should work--one that is fair
to victims and safeguards against litigation
abuse.
Last summer, John Knowles of Garden City, N.Y., was released from three years
of litigation hell when a jury finally decided that he should not be ruined financially
with a multimillion-dollar verdict. His sin? When playing in the Garden City Slow
Pitch Softball League in 2001, he slid into home plate. The catcher, Michael Licitra,
fell, broke his kneecap, and decided to sue Knowles for the nice round number
of $2 million.
Not long ago, this accident would have been considered, well, an accident. Baseball,
like all other physical activities, carries certain risks. Every year there are
about 15,000 fractures from recreational baseball and softball--not bad considering
that 43 million Americans participate. You can't play the game without taking
that chance. Risk and opportunity are the flip sides of the same coin.
But many Americans don't see it that way anymore. Something--anything--goes wrong,
and it's assumed that somebody should pay. Like a switchblade, legal fangs replace
the nice smile. The legal system--which should be the foundation of our freedom--fosters
almost primitive feelings of fear and exploitation.
A COURT OF LAW IS NOT A DEMOCRACY
Why does justice today have this effect on otherwise normal people?
Defenders of current legal orthodoxy argue that there is a constitutional right
to take almost any claim to a jury. In a December 2003 Newsweek essay entitled
"Juries: Democracy in Action," Sen. John Edwards (D-N.C.) wrote, "The people who
sit on
juries are the same people who decide who the president should be. People who
are entrusted to choose the leader of the free
world are capable of weighing evidence in a courtroom."
This is powerful rhetoric, knocking tort reformers back on their heels as soon
as they offer up any reform that might
impinge on this so-called right.
Stirring as it sounds, however, this isn't the rule of law. Justice is not supposed
to be "democracy in action," decided in minielections,jury by jury. The rule of
law requires that judges make rulings defining what is a reasonable claim. Only
then do you get consistent decisions and predictable outcomes. If any accident
can go to a jury, irrespective of reasonableness, then pretty soon people don't
feel free to act on their reasonable judgments.
WHERE ARE THE GATEKEEPERS?
Reviving the rule of law will require a shift in responsibility back to judges
and legislatures. The core question in civil justice--who can sue for what--must
be decided as a matter of law by judges, not by juries on an ad hoc basis. Is
sliding into home plate a risk that our society can tolerate or not? We need to
know before going out to play.
"An act is illegal," University of Virginia professor Donald Black once observed,
"if it is vulnerable to legal action." By letting any claim go to a jury, we have
effectively declared most life activities potentially illegal.
Most judges today don't even have an idea of this responsibility. Heedless of
the broader social consequences of allowing particular claims, judges defer almost
all decisions to a jury. Just let the two litigants slug it out in front of the
jurors. As one judge said to me, "Who am I to judge?"
The judge in the softball case refused to dismiss the claim, saying that Knowles
had "the obligation of using reasonable care
to guard against a risk which might reasonably be anticipated." Hmmm . . . let's
think about this. Yes, sliding into home plate involves the certainty that players
will occasionally get hurt. But that's inherent in the game. The town of Garden
City was also sued. What could it have done differently? Ban softball?
Nor do legislators these days seem to understand their role in drawing these
lines. Congress is all too reluctant to impinge on the so-called right of the
people to take claims to the jury.
But lawmakers have the situation upside down. It is precisely their responsibility
to decide, on behalf of the common good,
when people should be able to sue and when they should not.
Law is not a free-market commodity. Suing is the use of state power by one citizen
against another. It's just like indicting
someone, except for money. For law to be the foundation of freedom, the power
of a lawsuit must be constrained by deliberate
choices by judges and legislatures, deciding which claims are valid and which
are not.
There was a time when statutes commonly limited claims, such as the ones that
bar citizens from suing power companies
when there are power outages. And the greatest judges have emphasized that the
common law requires what Justice
Benjamin Cardozo called "judicial legislation," in which judges draw the lines
between what is and what is not a valid claim.
DON'T BLAME THE JURY
The villain here is not the jury. Juries are generally sensible, as they were
in the softball case. As one juror observed there, it was the umpire's call whether
it was a valid slide, and "the umpire was impartial." But "generally" is not the
rule of law.
Earlier this year, in another freak accident resulting in a broken leg (on a
sledding hill in Greenwich, Conn.), a jury rendered a verdict of $6.3 million
against the town.
Juries have been given the wrong job. The Garden City jury couldn't make binding
precedent that sliding is OK. Juries in
asbestos cases don't have the authority to balance jobs against lawsuits. The
role of the jury in our constitutional system is to resolve disputed facts, not
make legal rulings on what is a valid claim.
The fault here lies with judges and legislatures. They have left a vacuum of
authority, which has resulted in a kind of anarchy in which bullies and self-appointed
victims use lawsuits for self-interest. Something goes wrong? Pick up the legal
club and threaten someone. The effect is to infect the rest of society with fear.
As a result, we don't just have an injustice here and there; we have a slow disintegration
of our social fabric. The cure for this cancer on our culture is not tort reform,
but a basic shift in authority. We must restore the rule of law. | 
