By Craig Byrnes
I’m a trial lawyer. When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.
The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here’s what I say to these folks.
Let’s Play “Who Have You Sued?”
I usually start off with a little party game I like to call, “Who Have You Sued?” It goes like this: I ask the person, “Have you ever sued anyone, or been sued?” The next question is, “Do you know anyone who’s been sued, or who’s sued anyone?”
I feel completely safe asking these questions, because no one’s ever answered yes to either question yet.
Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don’t even know anyone who has. Within a full degree of separation — which is a lot of people, when you think about it — you have probably had no contact with the court system.
As for our being an “overly litigious society,” did you know that, from 2009 – 2010, lawsuits in California actually *decreased* 11.6%? As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed.
In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract. You can’t blame those cases on greedy plaintiffs sticking it to the poor companies since breach of contract cases usually involve corporations suing each other. Tort cases, involving personal injury and wrongful death — the sorts of things you hear about people suing for — were about 6% of the courts’ dockets in 2009.
So just to make the point here clear — the number of lawsuits is trending down, not up, and per capita, and California is toward the bottom of the list when it comes to lawsuits being filed.
Your own experience tells you that lawsuits are not out of control, because you’ve never sued anyone and you don’t know anyone who has. The data says that lawsuits are not out of control — they’re actually trending down.
We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?
But What About the Big “Hot Coffee” Verdict?
But how about all those out-of-control verdicts? How about the lady who spilled hot coffee in her lap and got 150 million dollars?
Litigants who win big verdicts are sort of like people who win the lottery. You’ve heard it happens, but you’ve never met anyone it’s happened to.
There are a lot of reasons for that.
Part of it is that what really happens would never make the news. It’s too boring. Did you know that the median verdict in California personal injury cases is about $115,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what’s really happening out there.
The other thing the news doesn’t tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone has heard of the McDonald’s coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don’t have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald’s showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.
And while you never heard any of those facts on the news, here’s what you also didn’t hear: the judge took away the jury’s verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury’s verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.
Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.
Sometimes, the facts just don’t make good stories. But they are still the facts. Despite what our own experiences and the facts tell us, the constant drumbeat of “frivolous lawsuits” and “overly litigious society” keeps legislators dancing to the insurance companies’ rhythm.
I know that this blog post’s title was “Our Overly-Litigious Society: The Justice System is Out of Control,” and that’s not at all what the evidence shows. Sometimes, you just can’t believe the headlines.
An earlier version of this blog post was published on the author’s Workplace Law blog.