To litigate, to mediate, to procrastinate...we all rotate...

The time has come to begin reviewing for finals.

Actually, some would argue that that time came long ago. And since we are all arguers-in-training here at law school, they'd probably make a pretty good case. But I come down squarely on the side of procrastination in all things, so while I've had a studying-for-exams plan in my head all along, I'm only just now beginning to enact it.

Anyway. The point is, today I was looking back at some of the early chapters of my Torts book. Now, a tort is basically a wrong the law recognizes as grounds for a lawsuit, sometimes but not necessarily a crime, and not a breach of contract. These wrongs range from a punch in the face to medical malpractice. Lots and lots of negligence. There is a common perception that the U.S. in particular is out of control, that we are an overly litigious society and that people sue each other "too much" for "anything." The word "frivolous" is bandied about.

One thing I have learned this semester is that's not entirely true. Most people who say that are reacting to things they've heard in the popular media, rather than judging from their own experience. I would say it's a bit like reciting the "qualifications" of a political candidate based on what you learned from his/her opponent's attack ad. It's not exactly the big picture.

My Torts book notes that a lot of people say there are too many people bringing lawsuits these days trying to get "something for nothing." I can assure you that if there's "nothing" a case is never going to make it past the initial complaint document, much less get to a jury. It's more a matter of getting "something from which someone?" Who's to blame for this injury that occurred, if anyone -- that is the question. (Sorry, Hamlet.) Also interesting to note, available studies show individual litigation is not on the increase--there have always been lawsuits; we read cases from the 19th century all the time and much of our law is founded on English common law from centuries past. Corporate and business litigation has increased, though. So perhaps the "greed" lies there?

Of course one of the most famous cases of all is the McDonald's coffee spill, and it's a perfect example of people going off half-cocked. Do you know the facts of the case? But do you really--the actual facts? The scalding coffee spilled when the woman went to take the lid of. She got third degree burns; she had to have skin grafts and was "permanently disfigured." It turned out that McDonald's intentionally kept its coffee hot enough to cause third degree burns. Why? I speculate it's part of their cheaper-faster approach to doing mass business: of course they're not freshly brewing coffee more often than they need to, so some people are going to get served coffee at its hottest and that might be unreasonably hot.

Furthermore, everyone says "oh, that woman got millions of dollars." Well, actually she didn't. First, she asked McDonald's to pay her $11,000 in hopsital bills. Only after they refused that was there a lawsuit for damages. The jury awarded compensatory damages (yes, don't forget that average citizens on juries decide damages, not lawyers) of $200,000, but her award was reduced to $160,000 because she was considered partly at fault. In addition to compensatory damages, a jury can award punitive damages if it finds a defendant acted willfully, wantonly, or maliciously. In this case, they decided McDonald's recklessness fit the bill so they decided on punitive damages of $2.7 million. You know what that amout is? Two days' revenue for coffee sales. Just the coffee! In the popular media, it all gets lumped together, but punitive damages are distinct from the compensatory. Punitive damages are for deterrence. They're going to be based on McDonald's, not on the "price" of the injury of being scalded by coffee. And, the judge reduced that award, too, to $480,000!

You may or may not agree with the jury's decision, but we should at least have all the facts before we start talking about all "those people" who bring "frivolous" lawsuits.

The sort of underlying notion of tort law is that freedom from pain and suffering is an intangible asset in society. We all expect to go through our days without being assaulted, battered, injured, negligently put in harm's way, etc. When that doesn't happen, the torts system is in place to compensate for injuries.

I, for one, love Torts class! Much to my surprise, it became my favorite class this semester. Criminal Law is up there, too. Torts is just -- I don't know. There's something almost poetic about it. I feel that every lecture in there illuminates something for me, both regarding the cases in my text and about the world at large.