Tort Talk

40 Tort Trial & Ins. Prac. L. J. (2005)
by Joel Levin

Tort talk has a number of components and aspects. It is worth taking a moment to review the factors that motivate tort chatter for (at least some of the) reasons other than conveying accurate information.

Tort lawyers enter the legal scene only after a mishap (or worse) has occurred. They are rarely, if ever, called upon to plan, arrange, draft or propose peace, serenity, security or compromise. Instead, some putative wrong has occurred, some person or entity has been harmed and some aggrieved victim is claiming a causal connection. Neither wronged nor wrongdoer is actually interested at this point in an accurate, academic and objective assessment. Rather, lawyers as advocates, whether as prosecutors or defenders of these positions (or with counterclaims both), are retained to prevail on certain positions. Of course, truth as a component of good advice is not unvalued, but it is only expected to be at the service of advocacy, otherwise having no independent life.

In fact, the lore of the profession, calling for zealous advocacy and the pursuit of all plausible positions on behalf of clients, celebrates this sporting theory of justice. However, no one ought to be fooled into thinking that the sport necessarily achieves compromise, reasonableness, moderation or verisimilitude. Moreover, given the general lessons of history showing the disparate results between understanding and disclosure on the one hand and combat and secrecy on the other, and the specific lesson of Nash’s equilibrium theorem showing the benefits of cooperation in various social situations1, one could hardly be complacent about the likelihood that two adverse sides fighting will achieve fairness or a justifiable result.

The lawyer’s task then becomes one of advancing a partisan or political position, one whose validity or veracity is not looked to as much by what actually happened as by incomplete indifference to it.2 This attitude of indifference, benign or otherwise, is one quite different from that of dishonesty. That is, one who lies can in some sense be said to have a certain respect for what is actually true, in that he goes about setting out some type of deception in order make his false statement appear to be true. Truth is the model, that to be presented, or through legal prestidigitation, appears to be presented. The liar thus, in this somewhat perverse way, pays homage to the truth in the same way that a hypocrite flatters or a plagiarist admires.

Typically the tort lawyer is unconcerned one way or the other with matters of truth, but is interested only in a certain kind of benefit for the client. It is important to realize just what this means. It does not matter, in very general terms, whether the driver ran the red light, the radiologist missed the tumor, the accountant failed to schedule a deduction, the engineering department converted the software, the medication was a defective product, the competitor defamed, interfered with or unjustly competed against the target company, or in fact whether various specific pleadings minutia — from estoppel to the statute of fraud defenses, from loss of consortium to belated discovery of the obvious past limitations deadlines, from mild deceptions to promoted RICO fraud conspiracies — claims and counterclaims, defenses, rebuttals and rejoinders become meaningless maneuvers. They are put forward either because they can be put forward (they are available in the way drink is to the alcoholic passing a saloon with discarded dollars at its entrance) because they promote a bargaining position or because they appease, annoy or satisfy the passions, jealousies, wrath or amusement of any of a number of parties. But at what expense? Is disguising malpractice the same as believing none occurred? Is showing the existence of failed predictions during telephone conversations the same as mail fraud, let alone racketeering? Is a case of a speeding and then flipped SUV one where either side surely believes that on the one hand the speed and on the other the SUV’s high center of gravity had nothing to do with the accident? Put more generally, does telling the truth just mean not getting caught?

Tort lawyers are ready to say that such questions are irrelevant, as representing one’s client becomes the central driving principle of legal representation. Truth becomes irrelevant, in just the same way it may well be irrelevant in the world of advertising, lobbying or politics.3

The pervasiveness of the advocacy agenda has, of course, tainted both bar politics and the legal literature. As to bar politics, the profession has become bipolar, if not outright schizophrenic, with lawyers linking their principles, politics, and economics to those of their usual sets of clients, at least at the tort injury bar. Entire sets of otherwise intelligent individuals express beliefs that either all (or virtually all) lawsuits of a certain type — soft tissue auto, medical malpractice, defective drugs, asbestos — are meritorious or all or virtually all are frivolous. As to commercial torts, the landscape is more complex, without formal bar association stances one way or the other on any particular sets of claims. Side switching is not only common place, it is universal. That said, specialization within commercial torts often leads at more micro-level specializations, with those who, defending accountant malpractice, or representing or suing brokers, or litigating RICO claims, engaging in bar politics on a smaller but equally exorcized and politicized basis.

The literature follows the money. The plaintiffs’ bar writes for various trial lawyer magazines, from “trial” publications by ATLA to the state and local journals, featuring a healthy peppering of self-aggrandizing, up by their own bootstraps, success stories. The plaintiffs’ bar generally sees itself as a cross between Albert Schweitzer and Clint Eastwood, often in self-aggrandizing, autobiographical accounts promoting its so-called heroic victories achieving victims’ rights. Meanwhile, defense counsel, generally more reticent to sponsor partisan articles and books, often under the auspices of conservative and libertarian think tanks, complain of a legal system gone amok, here ‘amok’ being a loose synonym for the concept of juries giving injured people too much money. Put differently, people ought to live with their pain and are reminded to do so regularly by those free of any pain. Finally, the legal elite, inhabiting larger firms, who regularly litigate in the tort area but from the more pristine vantage point of protecting economic interests rather than human flesh decry, in accordance with their clients’ general views, any system that unduly enriches potential voters (plaintiffs) and contributors (plaintiffs’ lawyers) to the Democratic Party.

It would be remarkable, of course, if a system could be established where truth was not only incidental, but often at odds with other primary goals (e.g., justice, equality, liberty, privacy and security), and yet achieved. People casually speak of a confluence between the adversary system and truth (as though the just always triumphs or truth at all times prevails) in just the same casual and unjustified way they speak of doing the right thing as being coincidental with being rewarded. Different methods in pursuit of disparate goals will achieve varying results, a platitude hardly worth repeating except that, in legal circles, it counts as breaking news. Certainly, goals such as justice and liberty are critical, and other matters occasionally need to be compromised if those goals are to be achieved. This is not the place to look for purity of purpose or to set out a textured theory of how the blending and balancing of purposes might occur. Let us instead return to ground level and examine several examples where tort talk strays from talk of truth. We might briefly examine four such examples, drawn randomly and without suggesting that they represent the area generally. These are self-protection, avarice, paranoia and tactics.

Corporate protection is generally dressed up as privacy. Claims are made that documents must be sealed, settlements kept confidential, payments remain secret and any number of matters guarded from the public light of day. Privacy is the purported goal, although everything from safekeeping intellectual property to incentivizing settlements to defending the floodgates are offered as further, if weaker (more far-fetched), justifications. It hardly needs to be stated what is lost by moving away from transparency and clarity of truth in the public realm.4Dangerous products, faulty drugs, hazardous waste sites, improper accounting schemes, self-interested handling of securities and even (for governmental entities) repeated incidents of indifference to child abuse all hide in the darkness of so-called privacy, a misnomer masquerading as a principle, in service to the greater good of organizational protection. Knowledge useful to ensure public health and safety, to prevent environmental degradation and to bolster the integrity of the financial markets is kept secret, while tort talk of the contrary — with complacent reassurance about certain products or conditions are — can flourish.

Avarice arrives as billing opportunities dressed up as due diligence. The common talk of the need to take more discovery, file additional motions, depose yet more witnesses or re-depose existing ones — all done in the name of gaining sufficient information to ensure reasoned decision-making — quite clearly demeans lawyers’ perception and self-perceptions by suggesting their inability to predict what is experientially obvious, adds spectacularly to legal costs, delays the movement of the judicial system (initiating drifts that make the prospects of resolution languish from weeks to years) and subjects any number of witnesses (innocent and not, first and third party) to the mind-numbing, belligerent, self-aggrandizing, time-destroying and often irrelevant processes of vacuously fuller discovery. Do we really expect that examining a witness on his distant high school record, getting straight a veteran expert’s precise opinions, or adding to the never-ending requests for production will create the joyous “eureka” that clarifies the discussion, erases the ignorance and focuses the debate? While that can happen or happen imperfectly, it is disingenuous always to claim its unadultered necessity.

Paranoia is viewed as jury fallibility dressed up as protection of the integrity of the legal system. There is the arcane set of rules of evidence, known to all lawyers and largely crafted and concerned with insuring that fallible lay jurors, insufficiently educated and indoctrinated into the legal mysteries of ascertaining truths, will not be led astray. However, aside from how well the actual rules work, and we should be modest about their efficacy, much is lost by these derailments from the normal value of getting things right.5 We might stand chastised by the argument made by Kauffman that law’s indifference to truth contributed to the assassination of Abraham Lincoln.6 The argument is this: under the American legal system of its day, anyone involved as a potential co-conspirator could not testify on his own or her own behalf as a witness, not even as a witness against the primary wrongdoer in the assassination, John Wilkes Booth. In that Booth early on got others involved, inadvertently on their part, in what turned out to be a murderous conspiracy, he reminded them of what was then common knowledge in America, namely that it would be self-defeating for them to attempt to reveal the plot or conspiracy because they were already party to it, and were thus, under the law, legally barred from testifying as to their own innocence.7 Thus, any revelation would only contribute to their own demise. They were therefore cowed into a silence that allowed the assassination to proceed. While exclusion of co-conspirators’ testimony, and criminal defendants’ testimony in general, has rightly since been overturned8, we should hardly be smug about the routine tradeoffs made because jurors can occasionally get things wrong. They can also get things right, and one should at least mourn the parsed evidence that fails to come jurors’ way and contribute to their ability to ascertain the facts of the matter. It is as easy to show that co-conspirators testimony may be misleading (false, self-regarding, prejudicial) as that of today’s routinely excluded insurance evidence (annuities rather than future damages, workers’ compensation set-offs, liability insurance, subrogation, insurance paid by co-defendants). Both exclusions rest on the premise that partial is better than complete truth, trust is expendable and the price paid for keeping secrets from adults neither endangers democratic attitudes nor makes us cynical about holding such attitudes. These are remarkable conclusions.

Tort law and tort lawyers today are disparaged, if not reviled. The entire arena is increasingly seen not only in need of reform or even purification, but elimination. Extreme libertarian analysis suggests shutting the courthouse doors to all but those in need of criminal remedies, and perhaps, at best, charging anyone else who wishes to enter, while self-serving capitalist analysis often sees the costs of tort suits as so high as simply to allow harm to fall without legal consequence where it may and ask that individuals be sufficiently prudent and prescient to ensure against any risk coming from whatever direction it might befall them. Of course, tort lawyers know better. Allowing the tort system to degenerate and ultimately dissipate such that vengeance becomes the sole remedy encourages not only a vengeful, posse, blood-feud mentality,9 it mars and disgraces a society built on some theory of human dignity. In that the system itself is crumbling, it is of no help that tort talk is indifferent to, if not contemptuous of, the truth.

What can we conclude? Candor for the lawyer is like reluctance for the soldier. It challenges and undermines the institutional integrity of the system, ex post facto courageous if the challenge is warranted while undermining the morally justified and being insubordinate and illegal if not. Unfortunately, American tort law often invites comparison to a valiant army defending a tainted government. The soldier and sailor performing his or her duty on behalf of such a government ­ even assuming the rules of performance themselves are justifiable, humane, minimally intrusive, and within the field-justifiable confines of due process — pay a high personal and institutional price for any doubt. Treason, death, the death of friends and the loss of battle, cause and country can arise from doubt. Instead of loyalty directly to moral principle or political good, the combatant is required to give direct loyalty to the government, with presumed indirect gains achieved down the road. The wisdom of historical perspective deals harshly with many such campaigns, but that is armchair-politics. The tort lawyer is not as fully engaged — the stakes are lower, the time-frame wider, the conscription absent, the maneuverability greater, the resort to neutral third-parties (courts, disciplinary processes, other corporate or organizational or family or insurance players) more common — and his or her sets of choices are rarely as dire (grim and from a poor collection of alternatives) as that of the soldier. That suggests that role performance, conduct on behalf of an organizational or politically-driven agenda, rather than morality or conscience, should not have the same degree of insistence or loyalty foisted on soldiers.

That is not the issue here. This is not the place to enumerate specific dos and do nots. It is the place to suggest that tort lawyers realize what soldiers often also know: they are defending the indefensible, or, at least, brandishing tactics and weapons that ought not to be used, or used readily. The duty to speak truly but out of school is inversely proportional to the quality of that school. Put otherwise, the worse the system — the junkier the experts, the more obscure the discovery, the fewer the peers in a jury of one’s peers, the more the insurance coverage exposes, the more checkered the whole truth, the slower the speedy justice, the less reforming the tort reform, the more absent the justice in the justice center or on the panel of justices, the more tort law is driven by money, politics, power, ignorance, stupidity, perjury, ignorance, sloth or avarice –the less compelling are the claims of loyalty to it. The tort talk issue, then, like historical events, comes twice: first as tragedy then as farce.1o Initially, the talk is sanctimonious or (among the better informed) hypocritical, with the championing of rules and results clearly legally mediocre, morally compromised, ethically unjust and factual disingenuous, all spoken with a false reverence. Later, the verbal reiteration becomes either celebratory or pervasively condemning ­ praising procedure, form, myth and process or proposing the system be retired (junked) with no cogent alternative suggested — lauding or berating a system absent concern for candor or truth. From complaint and answer to closing arguments, do we ever get it right? Do we try? Do we care?

1See John Forbes Nash, Jr., The Bargaining Problem, 18 ECONOMETRICA 155 (1950); Two-Person Cooperative Games, 21 ECONOMETRICA 405 (1953).

2One excellent if somewhat abbreviated discussion of indifference to truth as a philosophical issue can be found in Harry Frankfurt’s ON BULLSHIT (2005), a title no doubt appropriate for many a tort lawyer’s autobiography.

3One revealing if somewhat overheated account of the damage done in a political discourse at sea from truth is that of F. G. Bailey, THE PREVALENCE OF DECEIT (1991).

4There is an active literature on this issue. One recent review of the problem with solid analysis is David Sanson, The Pervasive Problem of Court-Sanctioned Secrecy and the Exigency for National Reform, 53 DUKE L. J. 807 (2003).

5Fairman says the gap is between the rules of evidence and the rest of the law. “The law of evidence is concerned primarily with workable rules for determining truth . . . [But the Supreme Court] does not sit to enforce Wigmore on Evidence. . . In asserting the voice of the Constitution the Court rises far above the mere law of evidence.” Charles Fairman, FUNDAMENTAL LAW IN CRIMINAL PROSECUTIONS 71 (1959).


7A relatively and certainly interesting history of how the right against self-incrimination metamorphized in America into a rule which barred any testimony whatsoever can be found in Judge Wisdom’s opinion in De Luna v. U.S., 308 F.2d 140 (5th Cir. 1962).

8The first repeal of the accused testifying on his own behalf occurred in 1864 in Maine, followed by California in 1866. It was not until the 1960’s that Georgia finally followed suit, making it unanimous in the states. Most of the changes were by statute, not common law. The statutes are set out in Wigmore, EVIDENCE §2272, n. 2 (McNaughton Rev. 1961).

9It is worth noting how simple wrongful death cases in pre-tort societies resulted in revenge murders, blood-feuds, and mass killings. A classic account from Norse history is NJAL’S SAGA, a Thirteenth Century account of how an Icelandic killing led to a fifty-year blood feud. A wrongful death suit would have saved over a hundred deaths. A very different (but brutal as well) analysis, relevant to Balkan history, is found in Margaret Hasluck, The Albanian Blood Feud, LAW AND WARFARE (Paul Bohannan ed. 1967).

10The reference is to the insight of Marx, building on Hegel. “Hegel remarks somewhere that all facts and personages of great importance in world history occur, as it were, twice. He forgot to add: the first time as tragedy, the second as farce.” Karl Marx, THE EIGHTEENTH BRUMAIRE OF LOUIS BONAPARTE 15 (New World ed. 1963, originally published in 1852). The early Marx, like his mentor Hegel, was often a shrewd observer of the passing show, but (again like Hegel) almost invariably drew the wrong conclusions from those observations. The later Marx got neither the facts nor implications right, with well-known savage and tragic results.

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