Tort Wars

39 Tort Trial & Ins. Prac. L. J. 869 (2004)
by Joel Levin

Personal injury law – using that term in the way that most in the profession do, to include auto accidents, medical malpractice cases, toxic exposure cases, premise liability matters, and other related injuries to one’s person – is dominated by those who spend their time not having ever been in large, prestigious firms but rather are in small personal injury firms or in small to moderate insurance defense firms. The practice is driven by facts and only to a lesser extent by legal doctrine. The day to day business of tort law involves client contacts, numbing paper discovery and motion practice, rote depositions, and encounters with over-worked and often hostile judges, with lawyers laboring to bring the matter to a jury of someone’s peers, peers who, if they would have arrived individually at the lawyer’s door at night would cause a call to the local police.

This is a world where law professors rarely visit, except as voyeuristic tourists gawking at occult rituals1. It is a Runyanesque world of struggling solo practitioners, squirly private investigators, avaricious expert witnesses, pontificating magistrates, preoccupied and ambitious judges, courthouses filled with a Dickensian menagerie of low-end (and not so low-end) government officials exhibiting various degrees of sloth, myopia, partiality, vindictiveness and partisanship, and of clients whose court case trumps their marriage as their single most important life cycle event. Thus, the particular criticism of foreignness, akin to unmusical outsiders watching the veteran but arcane jazz band, while traditional and well-worn, has hardly been met in the academy. The reason for noticing all this is that before looking with more detail to Professor Shapo’s work, there is some doubt that such work could accurately give any help to the practicing professional, except reiterating doctrine. Moreover, the doctrine necessarily would be elliptical and of limited value, covering too many jurisdictions and too many areas. The question then is this: is there some special expertise that might be brought to bear on tort law and culture by the traditional writers in the legal academy?

The answer is undoubtedly yes. Tort law is not a naturally occurring object, like rocks and stars. It is a product of thought, and controversial thought at that. Thus, the tort wars. Complex economic, demographic, sociological, political, and other such forces are often at work in changing our perceptions, our psychology, and our expectations. Tort law is not just about what judges say. In fact, it is often just the opposite. Clients tell compelling (if often incomplete, inconsistent, incoherent, and improbable) stories to creative lawyers, who argue with various degrees of persuasion to eclectic juries under shifting instructions (sometimes obeyed and sometimes not) from the court, all of which, taken in large numbers, can cause sea changes in legal doctrine.


1That is not to say that there are not superb chroniclers of legal behavior, often using sophisticated empirical methods drawn from sociology, anthropology and economics. Certainly, that list is long (although nowhere long enough) and would need to start with the work of Marc Galanter and much of what was done under his supervision and by his colleagues at the University of Wisconsin Law School. See, for example, his work with THOMAS PALAY, TOURNAMENT OF LAWYERS: TRANSFORMATION OF THE BIG LAW FIRM (ed.1991), where use of the economist’s statistical methodology such as kinked linear functions and chi square analysis is employed. See, particularly, Chapter 5. See, also, his MEGA-LAW AND MEGA-LAWYERING IN THE CONTEMPORARY UNITED STATES (ed. 1983). Other good work in the field, to pick just one representative if excellent example, would be that of Robert Mnookin, in a number of his works, often with others, including BEYOND WINNING: NEGOTIATING TO CREATIVE VALUE IN DEALS AND DISPUTES (2001), particularly Chapter 6 on psychological barriers or with Eleanor Maccoby DIVIDING THE CHILD: SOCIAL AND LEGAL FORMS OF CUSTODY (1992), particularly the economic analysis in Chapters 6 and 10. The problem is not just that there is not some empirical work, albeit often scattered and without reference to other work, that is, lacking a coherent literature. It is that the middle-level approach of the legal academic, that is, the worship of process values in appellate cases, seems not only to be free-floating without roots elsewhere, but quixotic in its claims of usefulness beyond restating legal doctrine. The lack of theory (that is, if there is to be a hierarchy of practice and empirical work at the basic level, then process value work in the middle, and theory at the other end) is another matter. Legal theory in general, while a thriving industry throughout the world, is marginal to the point of disappearing in the American academy. The best of it, even by Americans, is often the work of expatriots. See, for example, the Oxonian work of Ronald Dworkin, including A MATTER OF PRINCIPLE (ed. 1985) and LAW’S EMPIRE (ed. 1986).