United States: The Truth About Lawsuit Folly

In the United States you can demand $54 million in damages for a lost pair of pants. But does this mean that Americans are better protected in their justice system? Not necessarily. The main beneficiaries of this system are lawyers, explains Anne Deysine, professor at the University of Paris X-Nanterre and author of several books including “Institutions of the United States” (Les institutions aux États-Unis) and “The United States, a New Deal?” (Les États-Unis, une nouvelle donne?).

Is the United States the country of lawsuits? Americans are certainly not afraid to go before a judge and everything seems to favor resorting to legal action. But does this mean that the country is inundated with lawsuits? It is not so simple. One thing is certain, if the system established by the Constitution of 1787 allows for the settlement of disputes to be made by a judge, it also paves the way for a new type of despotism, that of lawyers.

What facilitates the resort to lawsuits? To start, there is no social safety net; obtaining compensation for damages is often the only option for victims. Then there is the complex judicial structure as well as the nature of the law. The United States is a Common Law country, having an essentially case-law system; judges base their rulings on precedents (previous rulings) which prevail and are imposed in court decisions, unlike in French law. Contributing to the complexity is the decentralized judicial system with 51 supreme courts, one federal and one for each of the 50 states.

In American DNA

Moreover, the accusatory system places the procedure in the hands of the parties, that is to say the lawyers, with the judge simply acting as an arbitrator ensuring that everything goes smoothly. It is also each party (and not the judge) that chooses and pays its own experts. Therefore, it is difficult to do without a lawyer whose interest it is to encourage his client to go to court, especially in a civil case. Moreover, numerous mechanisms facilitate the task. The pactum de quota litis (an agreement entered between a creditor and a third person with regard to recovery of a debt) allows him to collect fees that are proportional to the damages awarded to the client. This system permits an individual with few financial resources to undertake legal action that he knows will be costly. Furthermore, American law is very accommodating to litigation; it allows for class action lawsuits and the possibility of asking for punitive damages when, for example, there is a blatant and voluntary failure to respect safety.

As a result, trials are without a doubt as embedded in American DNA as baseball. Of course, resort to legal action can also be a form of exploitation with the threat of trial becoming a strategic element forcing the other party to give in; a trial means time and money. Lawyer and court officer fees are so significant that even a victorious trial can lead to ruin. Furthermore, the rules are so complex and esoteric that they confer an exorbitant power to lawyers, shamans of the law. They are so numerous they can eventually obstruct any initiative. Fear of risk dominates because risk is everywhere. Obstetricians refuse to deliver babies for fear of lawsuit; in schools and universities fear of being accused of sexual harassment has become haunting; this explains the very strict procedures imposed on professors and students alike. This does not, however, prevent slip-ups on either side. In 2008, a six-year-old child was accused of sexual harassment and reported to the police by his school administration for touching the buttocks of a girl in his class.

Inequality

But things must be kept in perspective. Less than 10 percent of cases end in trial. The vast majority of civil cases are settled out of court, while others lead to mediation, a very developed technique for settling disputes in the United States. In criminal cases, more than 95 percent of cases, even ones involving the most serious crimes, can end in negotiation between the prosecutor and the defendant’s lawyer; this is called plea bargaining. The result is a plea agreement, an admission of guilt in exchange for a lightened sentence, provided the defendant has a good lawyer. But perhaps the major flaw of the system in that it is very unequal, especially when concerning criminal matters. With the exception of federal jurisdiction and the jurisdictions of certain progressive cities or states, court-appointed lawyers are paid very poorly or are hardly paid at all. Therefore, they rarely have the means or desire to invest in their clients’ defense. The last option for a defendant is to challenge the court’s decision by citing ineffective assistance of counsel because the lawyer, for example, fell asleep at the hearing or did not make the minimum effort to research all factors, extenuating circumstances, and so on. But despite a favorable jurisprudence, appellate courts are little inclined to open the floodgates for this type of recourse.

Everything or almost everything can be a reason for a trial in the United States.