Law in Utter Failure: Torts as a Lawyer Bunco Operation

The purposes of torts include deterrence of bad conduct, increasing the safety of products by making dangerousness more expensive, decreasing the need for rigid, obsolete regulation, compensation of injured people, and to prevent violent retaliation by injured parties or their families. Instead, failure is its only fruit.

1) All money comes from the general public.

2) All safety improvements have come from technology development. None has ever come from a torts action.

3) The standard of prudent behavior is set by a fictional character. No juror is allowed to consider the ideals or behavior of a real person. The reason for this reliance is to make prudence an objective standard. Instead, this ridiculous doctrine of using fictional characters as arbiters is to impose the subjective bias of the judge in the case on the defendant.

4) At the core of negligence is duty. Duty is determined by the foreseeability of harm. There is foreseeability. The sun has risen in the East and set in the West millions of times without exception. The foreseeability of an accident is rarer, more like a that of a winning lottery ticket, true even in the most dangerous situations. The burden of proof in a civil trial is the preponderance of the evidence. That means the evidence makes it a minimum of 51% likely that the plaintiff is right. That is a natural landmark for foreseeability. However, defendants lose cases in which the rate of injury is in the foreseeability range of lottery winning numbers. These verdicts violate the procedural due process of the civil defendant. Worse, across cases, the foreseeabilities have very wide ranges, as do the damages for equivalent injuries.

5) Torts remains mired in Medieval misconceptions, and espouses the chain of causation. That chain may be interrupted by an unforeseen, unintended factor. That breaks the chain of legal causation and ends the case. Modern catastrophe analysis focuses on the clustering of factors. There may be 12 in a catastrophe, all coming together in an instant. If one of them is prevented or fails to take place, the entire catastrophe may not take place at all. So all defendants are being scapegoated for catastrophes that took place after 12 other factors, parties, and happenstances clustered randomly sometimes. This scapegoating violates the procedural due process rights of civil defendants to a fair hearing.

6) Most of the cost of torts is consumed by providers. Victims see little money. Even if the verdict is large, it may be for future care, and the medical profession consumes it.

7) There is no price for permanent, devastating injuries. No one would trade such an injury for any amount of money. Most people would be willing to spend an infinite amount of other people's money to avoid one for themselves. There is no market for injuries to price one. The verdict is payment for something that does not exist. It is like selling stock in a company that does not exist. Such sellers would go to prison, as a rule. The range of payment is wide for equivalent or for the same injury. This wide range violates the procedural due process rights of the civil defendant.