Jay M. Feinman is a distinguished professor at Rutgers Law School and the author of “Law 101: Everything You Need to Know About American Law.”
Suing is supposedly as American as apple pie. The right to a jury trial in lawsuits is enshrined in the Seventh Amendment. And the portrayal of civil suits is central to American popular culture, from John Grisham’s novels to Judge Judy Sheindlin’s reality TV courtroom. But what people learn from civics classes, popular fiction and television melodramas doesn’t always reflect reality. Here are five myths about civil litigation.
Myth No. 1: Americans are too litigious.
Writing for Forbes in 2013, conservative commentator Carrie Lukaslamented, "Americans have so long been saddled with a litigation culture that it's hard to recognize the full weight of its effects." With the infamous McDonald's hot-coffee case as the poster child, one 2016 poll, according to the Wall Street Journal, found that 87% of voters said there are "too many lawsuits filed in America." Congressional Republicans argue that future pandemic relief bills must immunize companies and health-care providers "from frivolous lawsuits."
These notions condemn suits in which a plaintiff looks for recourse after being seriously hurt by someone else, such as a deep-pocketed corporation. But most lawsuits don't arise from personal-injury claims, like the McDonald's case. About half of the civil cases in state courts are contract disputes. Many of those are run-of-the-mill cases; one study found that 37% of contract lawsuits are simple debt collection cases and 29% are landlord-tenant disputes, neither figure suggesting a lawsuit-happy society. Another 16% of civil cases are small claims concerning sums of a few thousand dollars or less. Only 7% involve tort claims, and those mainly arise from routine automobile accidents.
And litigation rates even have declined in recent years, according to the National Center for State Courts. While that decline seems to be leveling off, between 2009 and 2015, civil caseloads dropped at an annual rate of 3.5%.
Myth No. 2: There are too many lawyers.
In "The Lawyer Bubble: A Profession in Crisis," former big law firm partner Steven Harper discusses the "massive oversupply of lawyers." The late Supreme Court justice Antonin Scalia bemoaned that "we are devoting too many of our very best minds" to the legal profession because "lawyers, after all, don't produce anything."
But the problem isn't that there are too many lawyers; it's that legal services aren't adequately distributed to those who need them. The "justice gap," according to a 2017 report by the Legal Services Corporation, "has stretched into a gulf." According to the LSC, low-income Americans received inadequate or no legal help for 86% of their civil legal problems.In New York City, according to a task force created by New York state's chief judge, 93% of parents dealing with child support matters lack legal counsel. In credit card debt collection cases, the task force found that the scales of justice were dramatically unbalanced - creditors always had lawyers; only 1% of debtors did.
Myth No. 3: Jury awards are out of control
In its latest annual report on "judicial hellholes," the American Tort Reform Foundationproclaimed that in Georgia, "outrageous nuclear verdicts have become the norm." A frequent complaint by business interests and insurance companies is that there is a litigation "lottery mentality": Not all plaintiffs win, but those who do expect to hit the jackpot, such as the $157 million a Florida jury awarded last year in a wrongful death suit against cigarette giants Philip Morris and R.J. Reynolds.
Large jury verdicts get the most publicity, but they aren't the norm. From 2010 to 2016, the median jury award in personal-injury claims was $68,189. The civil justice system allots a key role to the jury as an arbiter of wrongful conduct, but juries aren't the final arbiter - verdicts often are limited or reversed by judges, as happened in June when the Missouri court of appealsreduced by more than half a jury's $4.69 billion award against Johnson & Johnson for selling baby powder found to cause cancer. And juries usually do their job very well. Studieshave shown that judges, who know the law and presumably are less prone to bias or passion, agree with juries' decisions at least three-fourths of the time.
Myth No. 4: You’re entitled to your day in court for a breach of contract.
Lawyer referral service LegalMatch explains that when one party breaks a contract, the other "will have a right to file a lawsuit against the breaching party." Website wikiHow says "If you have entered into a contract and fulfilled your obligations but cannot get the other party to do the same, you may want to sue for breach of contract.
But increasingly, that's not the case for contract disputes. Many businesses now put boilerplate arbitration clauses in their consumer contracts, knowing that customers are unlikely ever to read them and can't negotiate over them even if they do. These clauses bar consumers from suing and instead require them to go to arbitration, a private system of dispute resolution dictated by the companies with no judge or jury, limited discovery of facts, and limited appeal rights. Eighty-one of the Fortune 100 companies - among them Amazon, Walmart and Home Depot - include arbitration clauses, as do many financial services firms, sellers and manufacturers. (Amazon chief executive Jeff Bezos owns The Washington Post.) Buy something from online retailer Wayfair, and you agree that "any dispute" will be settled by arbitration, including a dispute about the scope of the arbitration itself.
Some arbitration clauses prohibit consumers from participating in class actions, so claims that are individually small but huge in the aggregate never get heard. The Supreme Court approved this approach in a case in which plaintiffs tried to sue AT&T for falsely advertising free phones.
Myth No. 5: Personal injury victims can always sue.
A staple of lawyer advertising is toutingplaintiffs’ right to “hold the negligent person or business accountable and get the compensation you deserve and need,” according to Morgan & Morgan, which lists itself as the nation’s largest personal-injury firm and is a ubiquitous TV advertiser. Legal self-help site Nolo.com says: “If one person involved in an accident was less careful than another, the less careful one must pay.”
But courts and legislatures have effectively immunized whole classes of wrongdoers. Suppliers of raw materials and components used in medical implants, for example, are protected from suits, as are universities and other nonprofits. The estate of a victim of the D.C. sniper was barred from using the District of Columbia's tort law against Bushmaster Firearms because Congress had prohibited most suits against gun manufacturers (the application of that federal law is being challenged by relatives of victims of the Sandy Hook shooting). Recent police killings of black men and women have drawn attention to the doctrine of qualified immunity, under which an officer can't be sued for an unlawful action unless it involves a violation of a "clearly established" right, a standard that's difficult to meet; last month the Supreme Court refused to hear cases challenging the doctrine.
And even when wrongdoers don't possess immunity, many victims have unknowingly signed waivers of liability. Gina Stelluti was injured when the handlebars of her bike dislodged during a spinning class, but the New Jersey Supreme Court held that her suit against the gym and bike manufacturer was barred because a release was among the forms she signed when she joined the gym. President Trump's campaign even had supporters sign such a waiver before his rally in Tulsa last month, which did not require masks or social distancing; to gain admittance, attendees had to agree to assume the risks of exposure to the coronavirus.
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