How to fix our Civil Courts System
By David M. Woods
Published September 25, 2006, 3:12 pm in Ethics, Morality, & Justice.
The American civil courts have been taken over by personal injury lawyers and people who would rather sue than take responsibility for their own actions. The civil justice system, which is supposed to provide justice for all, has instead become the playground for those seeking personal gain while making a mockery of justice. The signs of lawsuit abuse are everywhere: Personal injury lawyers run ads promising "big money for your injuries," people threatening to sue over trivial matters, and the lawsuit industry manufacturing reasons to sue anyone for anything. Lawsuit abuse is ruining our courts, destroying jobs, making our country a laughingstock, and costing you big bucks with everything you buy.
It is estimated that there are over one million practicing lawyers in the U.S. We have 70% of the world's lawyers, yet only 3% of the world's population. And every one of those restless lawyers is just itching to sue somebody.
And the problem is getting worse. Consider that there are 300 million people in the U.S. Eventually, all of them will die. At the current rate of litigation, about 75% of those deaths will result in a lawsuit. Now let's add in all the other accidents, disappointments, hurt feelings, bad luck, and injuries that all those lawsuit plaintiffs survive. If the average American suffers five unfortunate incidents, and half of all Americans sue each time lady luck forsakes them, let's do the math ... that totals up to nearly a billion lawsuits. (Maybe the U.S. does need all those lawyers after all!)
Ok, so most Americans are probably nodding in agreement by now. Without a doubt, the system is broken and needs to be fixed. So what's the holdup? The problem is that too many Americans believe we need the system just as it is. We've been told all our lives that, one day, we too may become a victim, and when it happens, we'll be awfully glad that we still have a right to our "day in court", and that we will be compensated for our suffering.
Furthermore, we are told, we need the system as-is to "get the attention" of incompetent or clueless wrongdoers out there who sell dangerous merchandise or services, or who own dangerous property, so to fix or remove these faulty things so they won't harm others.
So what's the solution? What can be done to reform the system, get rid of frivolous lawsuits, and clean up our civil courts, yet at the same time ensure that we are not denied our rights to justice?
This article will set forth a set of principles regarding our civil courts that can be used to fix the system. The first part of the article deals with legislative advocacy; fixing the courts requires legislation, but we voters need to know just what it is we need to advocate. The second part of the article describes what each and every one of us can do, as individual citizens, to clean up the mess.
Was it deliberate?
The first principle in the Legislative Advocacy section is to ask one very simple question regarding the harm or injury that has occurred: Did the accused party do it deliberately? Was it intentional or premeditated? Or was it an accident?
There is a world of difference between deliberate versus accidental incidents. Indeed, our criminal courts system is very specific on this point. That's why a charge of "1st degree murder" carries a much higher penalty, and carries a heavier burden of proof, than a charge of "manslaughter."
But this extremely important question appears to be rather trivial in civil courts cases. If the injury was indeed intentional and premeditated, then by all means, the guilty party - assuming that he/she is found guilty beyond a reasonable doubt - should be punished to the full extent of the law, and should be required to compensate the victim for all pain, suffering, expenses, loss of income, mental anguish, and anything else the court can think of.
But accidental injury is an entirely different matter. The cold hard facts of life are this: accidents will happen. Every day, when you get out of bed, you are risking your life. And even staying in bed won't guarantee you're safe from dangers in the home like a fire, or an aircraft crashing on your roof.
So if someone goes swimming in your pool (without your knowledge or permission), did you deliberately cause them to drown? No - it was an accident. If your company sells drugs and a customer consumes your product and gets sick or dies from it, did you deliberately and intentionally cause them to get sick? If you're a restaurant that sells piping hot coffee and someone scalds themselves with coffee they bought from you, did you deliberately and intentionally cause this injury?
Consider the case of the 24-7 restaurant. One night an armed robber entered the restaurant and murdered the employees. Did the employer pull the trigger or in any way deliberately choose for this to happen? No, but the armed robber sure did! Here is a good example where the justice system needs to get involved and make every attempt to force the party who made the decision to harm someone - in this case, the armed robber - to compensate his victims. But of course, that's not what happened. The party that got sued was the employer.
When accidents happen and innocent people get sued like they deliberately caused it, society pays dearly in many not-so-obvious ways. Owners of swimming pools remove their pools - they're too risky - and so the next generation is deprived of having pools to swim in when growing up. Drug companies - and all businesses - are discouraged from innovation; it's too risky. Employers are discouraged from hiring employees - they might get sued if something happens to an employee while at work - and this worsens unemployment and impedes economic growth. Doctors avoid highly litigious specialties like obstetrics, and as a result, there aren't enough obstetricians.
On the other hand, if a particular incident was deliberate, there is very little controversy. But accidents are an entirely different matter, and sadly, this issue gets too little attention. Accidental mishaps and incidents comprise the vast majority of civil lawsuits in the U.S. The remainder of the discussion on legislative advocacy will deal with cases based on incidents that were not caused deliberately.
Who caused it?
If a lawsuits is based on non-deliberate accident, that does not mean it should be automatically dismissed. It depends on whether or not it can be shown that one or more party was the cause of it.
Sometimes nobody is the cause. Accidents will happen, and occasionally, no one is to blame. A shopper in a grocery store slips on something wet, falls and is injured. Who really caused this to happen? No one, really; it was just one of those things that happens. In cases where no one actually caused the accident, the case should be dismissed!
An 18-wheeler crashes into the back of a small pickup, causing the pickup's gas tanks to explode. Who caused this accident? It seems that the driver of the 18-wheeler should be the guilty party, and if anyone needs to be sued, that's who it should be. But that's not how this case went - the party that got sued was the manufacturer of the pickup truck, on the grounds that the fuel tank design was faulty. If the party who truly caused this accident had been sued, this ridiculous case would not have gone forward. As a result, manufacturing expenses for private vehicles have greatly increased, but dangerous 18-wheelers are still out there.
Even without civil court penalties, profit-seeking businesses suffer great losses whenever any kind of accidents occur that involve their product or service. The free market provides all the incentive necessary to "force" businessman to ensure that their product is as safe and reliable as it can possibly be. Thus, the notion that punitive damages and other penalties are necessary to remove dangerous goods from the market is ridiculous.
Yet, product liability and malpractice lawsuits are based on this foolish notion. A drug company looses money and reputation if its products are found to be dangerous. A doctor looses money and reputation if he does not deliver top-notch medical care. Thus, the argument that a doctor or a drug company caused someone's sickness or death has no factual basis at all. Sometimes, bad things just happen, despite everyone's best attempts.
So what should the civil courts do when someone sues a company or a doctor, claiming their product was inferior, poorly designed, or injured them? Simply require that the company or doctor refund the customer or patient the cost of the product or service!
Stop rewarding victimhood
It is absolutely essential that the civil courts get out of the "pain and suffering" business. The only time pain and suffering is relevant is if the incident was caused deliberately (see above). Otherwise, it is not the government's problem.
Humans have endured pain and suffering throughout all of history, It's part of life. But somehow humanity survived and prospered, even though, through most of history, there were no civil courts to compensate you if pain and suffering entered your life.
Now the civil courts are trying to abolish pain and suffering completely. It won't work! All they've accomplished is to turn victimhood into a profit-making industry. When it comes right down to it, this civil-courts-created benefits system is just an extension of our socialist entitlement "soak-the-rich" welfare-state mentality, brought to us courtesy of leftist liberal politicians. It's just another way for government to forcibly redistribute wealth, where the beneficiaries are anyone claiming they're a "victim", at the expense of whoever has the deepest pockets.
But the worst examples of pain and suffering victimhood are the discrimination cases. These cases should all be instantly thrown out! Like it or not, this is a free country, and in a free country, we all have the right to discriminate. Every time anyone makes a choice and buys something, they have just "discriminated" against all the products they did not buy. The shopper's reasons for not buying the competing products are no one's business but the shopper; the last thing we need is "shopper police" looking over our shoulders every time we make a purchasing decision, so to approve our choices.
Employment should be no different. Whoever the employer chooses, he/she has just "discriminated" against all the others, and the reasons for the choice are nobody's business. Yet the civil courts have empowered personal injury lawyers to basically look over the shoulder of anyone making hiring decisions, qualifying their rationale for NOT hiring some particular person, and if the rationale is not acceptable, we allow the civil courts to punish the employer heavily. The end result of this judicial meddling, of course, is that employers become for more hesitant about creating jobs.
To help get the civil courts back under control, some states in the U.S. have dollar caps on "pain and suffering" damage awards. Although this is a step in the right direction, it just doesn't go far enough. Any kind of legislative cap on lawsuit awards is just some arbitrary number. The only correct "reform" is to abolish pain and suffering awards completely (with the one exception of deliberate intent, as mentioned earlier).
As for plaintiffs who will claim that some defective product, incompetent medical care, or poor service caused them pain and suffering, here is my advice: Let the buyer beware. No one held a gun to your head and forced you to buy this product. With regards to pharmaceuticals, be advised that these are chemicals, manufactured in a factory, and if you ingest these chemicals, there is a good likelihood that they will harm you. So before you ingest them, consider whether or not their benefits will outweigh their potential harm.
With regards to medical care, be advised that medicine is not an exact science, that doctors and nurses are only human, and that errors and misdiagnosis will occur. Before you voluntarily agree to let this person perform medical procedures on your body, consider that the benefits might or might not exceed the pain and the costs.
Now let's fix the problem
The final argument for continuation of huge punitive civil courts awards is that this is the necessary and proper way to fix these problems and help establish a safer, happier environment for all. If we sue swimming pool owners, it will force them to install good effective fences. If we sue incompetent doctors, it will get rid of them, or at least get them to clean up their act. If we sue employers and businesses, it will force them to implement effective safety programs for employees and customers.
But upon closer examinations, none of these objectives have happened. Swimmers still drown in pools; drugs still cause adverse side effects; grocery shoppers and nursing home residents are still slipping and falling. In short, Americans everywhere get hurt every day, both physically and emotionally. The utopian society envisioned by the advocates of our crazed civil courts system has not come about!
The track record for medical professionals is particularly dismal. Doctors that are truly incompetent are very rare. But what we find in the medical profession are some doctors that have repeatedly made the same errors, each time resulting in a malpractice suit, yet are still practicing medicine. Clearly, malpractice lawsuits have not protected others from injuries down the road.
A far more effective way to deal with incompetent doctors, or anyone in a professional capacity, would be to remove their certification with whatever professional organization monitors their profession. In the case of doctors, the AMA could review the history of, and renounce, physicians who have clearly violated the organization's criteria, and make sure that the public is aware of these decisions.
Furthermore, the work of consumer-quality organizations and individuals is a very effective way to make products better. For example, here in my hometown of Houston, every evening a popular newsman televises his "rat and roach report" of local restaurants that aren't as clean as they ought to be. It works, because the worst thing that could happen to any business is bad publicity, and they will do whatever it takes to avoid it.
As mentioned earlier, all businesses rely heavily on customer satisfaction and a good public perception on the quality and safety of their products. Mishaps are simply bad business. Airlines, then, have every incentive to ensure that they are safe. It is not necessary for the civil courts to levy damage awards so as to "send a message" to an airline that they should avoid accidents!
BEYOND LEGISLATIVE ADVOCACY
All of the above principles require legislative action to become policy. But if you agree that the civil courts are a mess, and want to take action on your own to clean them up, here's something you, as a private, independent citizen can do:
If you get summoned for jury duty, and the case being tried is a civil case, you have a golden opportunity during the "voir doir" phase of jury selection. The term means "to tell the truth." This is where attorneys for both sides get to question potential jurists, and exclude anyone if the attorneys feel they would not make a fair, impartial jurist for this case.
Here is your opportunity to change the system. At the appropriate time, stand and say:
"I believe this case should not be in this courtroom. I think the defendant is innocent, and the plaintiff and his/her lawyer are just using the system to extort money. It is not likely that you will change my mind on this."
There is a good likelihood that other potential jurists may also rise and say that they agree with you. If the court cannot find enough impartial jurists, the case might be dismissed.
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