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
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
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.