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ZellyRosaFirstEssay 5 - 23 May 2022 - Main.TashaStatzGeary
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Pop Torts: a Brief History of the Frivolous Lawsuit Moral Panic | | | All sorts of varied experience now in its fifth decade, from clerking in a federal trial court, to working on big-firm litigation and managing small-firm litigation in my own practice, as well as ringside seats at quite a few fights, suggests to me—as it had suggested to many of my mentors, from Tom Barr to Edward Weinfeld—that the most efficient (not necessarily the most lucrative) way to litigate "upwards" is to pretend that the system of procedure is far more restricted for plaintiffs than it actually is. That means researching your claims intensively before bringing them, not learning what your lawsuit is about only after you've taken discovery. Managing discovery to minimize cost of information, getting only what has net tactical or strategic value. Never coming before the court on any issue holding only speculation, or information and belief. No doubt if the system actually required such conduct much valuable litigation would not be chanced. So that would be a strong reason to resist defendants' efforts to close up the procedural space. But if you look closely at the practices that have made long-term, highly profitable niches out of difficult work, like civil rights employment litigation or aircraft accidents, you will see that pattern of procedural self-restraint repeated. Just considering that idea for the moment, where would it lead with respect to the idea central to this draft?
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> | Hi Zelly,
I really enjoyed this perspective to balance out the popular narrative that torts is a gimmicky, sleazy field full of the cliched billboard and bus stop ads for slip and falls. While reading your paper, I almost immediately thought of the infamous McDonald? ’s hot coffee case, which certainly also played into the panic over frivolous lawsuits. The idea of frivolous lawsuits also strikes me as gendered– historically women are disbelieved when they complain of injuries/pain, and it does not seem coincidental that the victim in the McDonald? ’s case was an elderly woman. It would be interesting to explore more how social identities play into which tort victims are mocked as bringing silly claims and how so-called ambulance-chasers might use gender biases when preparing cases. - Tasha |
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