In not so merry old medieval England, wrongful injuries between people either were suffered in silence or provoked revenge. Cooler heads began to prevail and courts of law were opened so such disputes over compensation and other remedies could be adjudicated under trial by jury.
Taken across the Atlantic to the colonies, this system – called tort law or the law of wrongful injuries – evolved steadily to open the courtroom door until the nineteen seventies. It was then that the insurance industry and other corporate lobbies began pushing one restriction after another through state legislatures– not restrictions on corporations’ rights to sue, but restrictions on the rights of ordinary people to have their day in court.
Lawmakers, whose campaign coffers were stuffed by corporate lobbyists, were not concerned about advancing their passing rules that arbitrarily tied the hands of judges and jurors—the same judges and jurors who were the only people to see, hear and evaluate individual cases in their courtrooms. Legislation imposing caps on damages – as with California’s $250,000 lifetime cap on pain and suffering – was especially cruel for those victims of medical malpractice who were young, unemployed or elderly and thus do not have significant enough wage losses to receive sufficient damages.
In recent decades, the nonsense about our society being too litigious (except for business vs business lawsuits) has become even more extreme. Not only do we file far fewer civil lawsuits per capita than in the 1840s, according to studies by University of Wisconsin law professors, but jury trials have been declining in both federal and state courts, with trials down by 60% since the mid-1980s.
My father used to say that “if people do not use their rights, they will over time lose their rights.” This truism brings us to a new book by University of Connecticut Law Professor Alexandra Lahav, with the title In Praise of Litigation (Oxford University Press). The title invokes the necessity of legal recourse in a society whose ordinary people are being squeezed out of their day in court, being denied justice, and are becoming cynical enough to want to get out of jury duty—a right for which our forebears demanded from King George III.
Professor Lahav makes the point we should have learned in high school, or at least college. The right to litigate is critical to any democratic society. Imagine living in a country where no one can sue powerful wrongdoers or the government. We have names for countries like that. They’re called dictatorships or tyrannies.
Here is author Lahav’s summary: “Litigation is a civilized response to the difficult disagreements that often crop up in a pluralist society. The process of litigation does more than resolve disputes: it contributes to democratic deliberation. This is the key to understanding what this process is supposed to be about and what should be done to improve it. By appreciating the democratic values people protect and promote when they sue – enforcement of the law, transparency, participation and social equality – reformers can work toward a court system that is truly democracy promoting.”
It would be more reassuring if more judges reflected those words. Were that the case, they would be fighting harder to expand the shrinking court budgets (about two percent of state budgets) that are increasingly causing civil trials to be deferred or courtrooms to be temporarily closed. Tighter budgets lead judges to excessively pressure lawyers to settle or go to arbitration. The latter is a malicious inequity between consumers, workers and other people unequal in power vis-a-vis big corporations like Wells Fargo, Exxon/Mobil, Pfizer and Aetna, who force consumers to sign fine print contracts that limit people’s rights to use the courts.
The usual sally against praising civil litigation is the claim of too many frivolous suits. Whenever Richard Newman, the Executive Director of the American Museum of Tort Law, hears that asserted, he asks for examples. They are not forthcoming. For good reason. Litigation is expensive; lawyers have to guard their reputations and judges, who largely lean to the conservative side, are in charge of their courtrooms. They are quite ready to approve motions to dismiss a case or summary judgments.
We have to take a greater interest in our courts. They are open to the public for a reason. Students need to visit them and understand what the burdens are on courts, and how our civil justice system can be improved. When I ask assemblies of students if they have ever visited a court as a spectator, hardly one in ten raise a hand.
Courts should not be places of case overloads and long delays. They should be welcoming temples of justice where judge and jurors engage in reasoned deliberation for the advancement of justice as part of a functioning democracy. The demands for justice are such in our country that courts should have more judges, more juries and more trials.
As the great judge, Learned Hand, wisely wrote “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”