HUMANIZING TORTS: A DISCUSSION ON TORTSPROF BLOG . . . Torts professor Bill Childs has a series of posts on his weblog TortsProf Blog about "humanzing torts"--
I've been thinking lately about the process of teaching Torts and what it might do to the way students (and professors, for that matter) think about injuries and deaths caused by negligence or intentional conduct. I'd like to try to start a dialogue about what we are doing and what, perhaps, we ought to be doing, in terms of remembering the human impact of the cases we're discussing.
The article tells the story of the tortiously caused death of Kody Linn Logan, my best friend and fiancé, including its impact on Kody’s survivors, and sets forth a two-part proposal to: (1) award damages for the intrinsic value of life; and (2) use such damages for the exclusive purpose of establishing a socially useful “living memorial” to the decedent.
If you're interested in the discussion about humanizing torts, you can participate at TortsProf Blog. The discussion has touched on tort reform, too, which seems logical enough: if you humanize torts, the debate about tort reform can take on a new meaning. Consider it from the point of view of a tort reformer: if you're trying to sell a program of curtailing individual rights for the good of corporations, it's much easier to do if you can "de-humanize" the individual. You can do it in a number of ways: you can deride the individual by claiming he or she doesn't care about "personal responsibility"; you can mock the individual by claiming he or she is only interested in "jackpot justice"; you can draw attention away from the individual by focusing on the motives of his or her "greedy lawyer," and so on. Unless you de-humanize the victims, tort reform is a much harder sell.
Here's what McClurg has to say about tort reform in his guest post--
"Tort reform,” promoted primarily by Republicans, currently travels in only one direction: enhancing protection for tort defendants. In Dead Sorrow, I make the point that for tort reform to have legitimacy as a national movement, attention must also be given repairing defects in the law affecting victims.
There's that word again: "victims." When I was a civil defense lawyer, I didn't give much thought to the real-life suffering of the plaintiffs, even those who truly were victims. To me the plaintiffs were just names on a complaint, people I could try to trip up in depositions. This attitude isn't necessarily common to all defense lawyers, but it's true of many of the younger ones. As I know from past experience, your job's a lot easier if you can trick yourself into believing that all plaintiffs are malingering. Not only does such a view relieve you of any personal responsibility for the role you're playing in the tort system, but it gets you on the right track in discovery, where it's your job to try to prove they're malingering. So a bit of de-humanization isn't really such a bad thing. Besides, as a new lawyer, you don't usually have to worry about valuing a case or advising the client about settlement; generally, a partner does all that.
As a plaintiffs' lawyers, however, things are much different: torts are automatically "humanized" for you every day by your clients. Perhaps that's one of the reasons I have such a negative reaction to many of the tort-reform proposals I read about. Where others might reason through such proposals by thinking of abstractions, I'm forced to consider real-life consequences. Tell me that the FDA slipped through a rule making it harder for people to sue pharmaceutical companies, and I think of the many clients I've worked with who've suffered (to consider just one of many examples) a slow, painful, agonizing death from primary pulmonary hypertension (PPH) caused by diet pills. Should I "humanize" this weblog by telling anecdotes about the kids who are left behind after their Mom is gone or the lawyers who cry during preservation depositions of dying plaintiffs? I'm not sure. I know from past experience that unless I keep discussions of tort reform at a comfortable level of abstraction, I'll be accused of being "manipulative." I don't necessarily agree, but today's not the day to explain why. I'll save my manipulation for another post.