June 08, 2005
High error rates
Thanks for reprinting Stuart Taylor's letter to the Washington Monthly, which was very informative. I believe the heart of our litigation problem in this country is the belief in the magical powers of the jury. You had a quote from a plaintiff lawyer stating that while a jury seldom understands the medical issues in a malpractice case, it can accurately judge credibility. The Taylor letter cites research indicating that claims against doctors "are unfounded in as many as 80 percent of the cases" (I believe that number to be too low.) It doesn't seem obvious to me that by taking the oath of a juror someone suddenly acquires outstanding skill at judging credibility.
Posted by Walter Olson at June 8, 2005 10:06 PM
Whether the tort system costs a lot of money (as you and I think) or a rather small amount (Senator Kennedy's position) is an interesting question, but it is not the test we would apply to, say, capital cases. If 80% of persons hauled into court as criminal defendants on capital charges were wrongly accused, the risk to any one of us of being wrongly charged (or, after further errors, wrongly put to death) might still be trivially low, but we would still consider the system intolerable. I do not want a large sector of the civil-law system to have an 80% mistake rate, especially when that mistake rate includes false charges against people who devote their lives to treating the ill. "Your ineptness caused this child's disablement!".
Thanks again for overlawyered.com. -- Bill Nuesslein, White Plains, N.Y.
Bill: The criminal law prosecutor must prove every element of a crime. Each element must be proven to have occurred beyond a reasonable doubt (about 80% certainty). Once the criminal act element has been proven, an intention to commit the element must then be proven, also beyond a reasonable doubt.
Contrast to the tort plaintiff attorney's burden. In many torts, no negligence must be proven, just an injury (strict liability). No intentional guilty mind must be shown in the defendant. The burden of proof is the preponderance of evidence (51% certainty). There are no long lists of tiny elements to prove.
The criminal prosecutor is usually inexperienced, poorly paid, and has a tiny budget. Torts lawyers own the Gulstream fleet. They have 6 or 7 figure research budgets, and oodles of money to spend on experts. They have utter discretion, and turn away meritorious plaintiffs because they are unattractive. They do not have to answer to politicians.
The rate of conviction at trial in criminal law is about 70%. The rate of conviction in torts is about 30%.
The standard of professional practice is being set by the criminal prosecutor. Despite the far higher burdens of proof, the poverty of the entire operation, their lack of skills, their inexperience, they bring a far higher fraction of cases to court that are meritorious.
The high failure rate of the tort plaintiff bar is itself a deviation from these professional standards of due care and practice. Furthermore, this deviation is enabled by their guideline setters, that include professional associations, law schools, county and municipal judges, all their employers. Because they are engaging in a type of lottery intentionally, exemplary damages are justified.
The tort system is thus itself a huge tort. I estimate that the lawyer of my state owe the doctors of my state a $trillion. Across the nation, the value of this tort dwarfs the value of all human assets on earth and in space. A courageous, if suicidal, lawyer deciding to seek justice from his profession will do well.
Such a lawyer would be greatly assisted by the legislatures' ending the privity requirement before a lawyer can be sued by an adverse third party. No one else has this privilige and immunity. It is also by gentlemen's agreement, self-dealt by the lawyer to himself, and violates the due process rights of innocent defendants.