A recent editorial in a conservative newspaper was entitled “Litigation Lunacy Run Amok,” and bemoaned the fact that Americans seem to have become a very litigious society. The main complaint of the editorial was the awarding of damages to criminal plaintiffs who were injured by police trying to capture them. It is hard to take issue with that argument. Unfortunately, however, when the press talks about a litigation happy public they often include a lot of people who should have sued the people who injured them. This country is seeing campaigns aimed at all tort litigation. The insurance industry is leading this antilitigation fight with the argument that all insurance rates will go down if lawsuits are halted. That’s true, but an awful lot of injured people will be left without recourse if lawsuits are placed beyond their reach.

A famous case that still finds its way now and again into the monologues of late night talk shows was the case of the spilled hot coffee. Should someone be allowed to sue someone simply because coffee is too hot? I don’t know the actual facts of the famous coffee case, but let’s make some up and see how we would treat a hypothetical coffee case. If the skin was burned off your body by a substance you expected to be harmless, what would you do? Would you just pay your own medical bills and live off your savings during the time you could not work? Do you think you are entitled to compensation for your loss? If you do, you need to stop laughing at the hot coffee jokes.

Let’s say the insurance company agrees to pay your medical bills and lost wages. Have you been made whole? You have undergone excruciating pain both at the time of the incident, and during the period of recovery. Is that worthy of compensation? If it were possible to transfer pain from one person to another, how much would you have to pay someone to suffer that sort of pain for you? What would you charge to suffer it for someone else?

Now let’s say that the insurance company is willing to pay for your medical bills, your lost wages, and your pain and suffering. Are you made whole now? The answer is yes, you are now whole, but that doesn’t mean there might not be room for one more sort of damages. Let’s say the restaurant owner tells you that he intends to continue serving boiling coffee because that is just the way he wants to serve it. When you point out that others could get hurt as you did, he laughs and says that not very many people get hurt, and if someone does get hurt he doesn’t have to pay because he has insurance. Is there something that can be done to get his attention and force him to make his business safer? The answer is yes, punitive damages are available. Punitive damages are intended (as the name implies) not to compensate the victim, but to punish the offender. They should only be awarded when the conduct of the offender is outrageous, and their amount must be sufficient to get his attention. They are intended to prevent future offenses. If you wanted to get the attention of a mom and pop grocery store a few thousand dollars would be sufficient punitive damages. If you are trying to prevent future offenses by a huge multinational corporation, you are probably talking about millions. Punitive damages, then, are a sort of fine tailored to the wealth of the offender.

You might wonder if punitive damages really punish an offender when he is insured. That is an issue for the offender and his insurer. If the insurance company wants to underwrite the cost of outrageous conduct it will have to pay and then have a talk with the insured about whether or not he is going to be insured for this in the future. However it is handled between them, the damages have caught the attention of someone who can make a difference. You might also ask why the victim should get this windfall of punitive damages. I say, why not. Someone will get it. Do we want to let the government fine wrongdoers and put the money in its pocket? There is room there for a lot more abuse than you can find in the present system.

In light of the above information, is the judicial system really out of control as so many critics claim? Yes, it is. Both the tort system and the criminal justice system are out of control, but changing laws won’t correct the problems. The problem is not the law; it is the judiciary. I remember an incident in law school when a first year student asked what most of us thought was a silly question. He outlined a fact situation which obviously would not have supported a lawsuit and then asked if he could sue. The professor’s answer was classic. He said, “You can always sue; you just can’t win.” Today he could probably win, and that is what is wrong with the judicial system.

Without trying to trace the historical roots of the problem, I will say only that we have too many people on the bench today who are afraid of being reversed. Cases that should not make it past a motion for summary judgment often go to a jury. The general level of legal scholarship could use a little improvement as well. The lower courts often make life a lot more difficult for police and prosecutors than Supreme Court precedent requires.