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.

Included in the series is a guest post by Andrew McClurg, who wrote a law-review article called "Dead Sorrow" (pdf) that's described like this--

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.

Comments

[Ted]

Humanizing liability reform is important. One of the reasons I took a pay cut more than my father, mother, and brother make combined to work for liability reform is because I think of the tens of thousands of people who lost their jobs because of abusive asbestos litigation, the countless people who will get cancer because of sloppy mass X-ray screenings for profit, the thousands of people who will die unnecessary deaths because pharmaceutical research has been stymied by litigation lobby greed, the auto accident victim who died while being airlifted to St. Louis because all of the neurosurgeons in southern Illinois have been chased away by plaintiffs' lawyers, the hundreds of unnecessary deaths from infant mortality because obstetricians have been driven out of practice by plaintiffs' lawyers, the people whose path out of poverty is blocked because they can't afford the extra $500 tort tax to purchase an automobile, and the small business owners whose path to success and job creation is blocked by attorneys. Among others. It would be nice if McClurg gave any thought to these people who, even though they may not be parties to the lawsuits he talks about, are surely affected by the lack of liability reform. I daresay my approach is more compassionate than that of the policymaker who thinks it important that randomly selected people win jackpot awards and billions of dollars are extracted from the economy by rent seeking.

[Matt]

Solid work Ted. They should give you a bonus for that paragraph alone.

Especially that one about the tort tax on an automobile! Good stuff.

[mobar]

I'm guessing that Ted took the pay cut because now he can live every modern lawyer's dream: getting paid to post comments on the internet all day.

I don't think humanizing the teaching of torts is necessary. Lawyers will identify with their clients to the extent it is necessary to get the job done. Someone indifferent to human suffering is not going to become a plaintiff's attorney. Rather, someone incapable of recognizing human suffering and communicating it to a jury won't bother going into plaintiff's work. If such "humanization" needs to be taught... well, I guess I welcome that as a defense attorney, since it will make cases much easier to settle below litigation costs.

I've always been struck by how many lawyers strongly embrace certain mythologies that defend their particular practice as the most noble and honorable practice of law available. I apologize if the term "mythology" offends, but I don't mean it as "something that is necessarily false," as much as "stories that give life meaning." Ted is a particularly striking example, with his earnest little post above. (So excited, he missed a preposition in his second sentence!)

Ted is notable, also, for his sincere efforts to offer the most rigorous reasoning available in support of his causes. Alas, I can't help but sensing something rotten at the core. At one level, it's this: all business is good, let the market flow! (unless it's a market that relates to litigation, in which case it is bad bad bad... See his anticipation and criticism of a "cottage industry of rent-seeking memorial providers" in the comments to the McClurg guest post linked in the above post). At another level, it's his complete internalization of the notion that lawyers are just, well... bad.

But I digress. I post here tonight to speak of causation. I couldn't help but notice the difference in quality of the (implied) arguments of causation that appeared in Evan's PPH example and Ted's aria to fighting in the trenches of tort reform. The increased difficulty to obtain redress for a PPH injury is obviously quite directly caused by federal regulations designed to make such recovery more difficult. But "the people whose path out of poverty is blocked because they can't afford the extra $500 tort tax to purchase an automobile"? Would Ted like to see businesses(nice, non-litigation related businesses) subjected to such a broad (and unsupported) standard of causation? Of course not. That would be ridiculous. That would be... bad for business.

And for every tort reformer who rails against the jury system: you push your crap on a completely unsuspecting and uneducated public that the opposition can't even force to sit still and listen to both sides of the story. Who is benefitting more from the vagaries of the ignorant public?

[mythago]

Ted, I must say, it's refreshing to see you humanizing your side instead of de-humanizing ours. Well, mostly.

[Bill Childs]

Mobar:

I suppose you're generally right that, in the long term, what I do with my Torts students probably doesn't make a big difference as to what they'll do out of law school. (This reminds me of a discussion at AALS about a purported connection between law students being miserable and lawyers being miserable; that connection is, to me, tenuous at best.) To whatever extent law school has dehumanized them, having actual clients (plaintiffs and defendants) will likely rehumanize them. And I don't intend to suggest that (many) students come into school insensitive to human suffering -- only that the way Torts is sometimes taught may be insensitive to human suffering.

I do think there's value in addressing that insensitivity by having at least a footnote in class reminding students about what we're talking about. This seems good if for no other reason than the fact that many of them won't ever touch a tort case again, but will presumably still have an opportunity to be involved in the poltical debate about liability and so on. And so perhaps it's good to have that thread going. (And it's good from a normative sense as well -- I like people who consider the human impact of policy decisions more than those who don't.)

And, incidentally, I make an effort to humanize the defendants too, especially in my Products class. (In practice, I was primarily a civil defense lawyer representing pharma companies.) For example, I teach a Playskool case where a child below the labeled age range choked on a block that met all relevant regulations, and ask students to think about what it would feel like to be at that company -- doing everything right that they could think of, but still having an appellate court let the case go to a jury. And when talking about pharma cases, I tell them about my overwhelming sense of my pharma clients as decent people who are trying to make good medicines to help people, even with all of the bad documents that are out there (and I have dealt with plenty of them, I promise). And then I do discuss the negatives of increased tort exposure in both Torts and Products, and we spend a fair amount of time on the subjects Ted touches on above.

[Matt]

In looking over Ted's list, I'm a little confused. I think some may need clarification.

Are the tens of thousands who lost their jobs due to asbestos bankruptcy - is he including the ones who died, and thus lost their jobs, as a result of exposure? On the cancer from screening cases, has he established that causal link, because those sound like some good cases for an enterprising plaintiff's lawyer? Also, when did Ford promise to knock $500 off the price of the Focus if they could get immunity? I missed that press release.

Ted, can you help me out with these questions?

[JR]

"the auto accident victim who died while being airlifted to St. Louis because all of the neurosurgeons in southern Illinois have been chased away by plaintiffs' lawyers"

First, its Southern Illinois, and second, here is a neurosurgeon who practices in Southern Illinois.

[Evan]

JR: If you're going to raise these problems, you should also point out that Ted's mention of "airlifting" is a bit of overkill. The implication is that the accident victim had to travel a lot farther because of the fearsome Illinois plaintiffs' lawyers (many of whom, like me, also practice in Missouri) and so needed to take a helicopter. In fact, there are major hospitals in St. Louis just across the river from St. Clair and Madison counties, sometimes closer than the hospitals in Illinois. If an accident victim died, it was probably because the accident was very serious, not because of a lack of neurosurgeons in Illinois. It was probably also the urgency, not the distance, which explains the need for airlifting. I suppose we need more facts. But airlifted or not, I would think most of the very serious accident cases end up in St. Louis anyway, where a couple of the best hospitals in the nation are located--located despite the fact that on other days, tort-reform advocates say plaintiffs' lawyers are chasing doctors out of Missouri. Go figure.