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An
article recently published in the South Carolina Law Review
by Victor Schwartz, Cary
Silverman and Phil Goldberg, “Toward Neutral Principles of Stare
Decisis in Tort Law,” 58 S.C. L. Rev., 317 (2006), can be very
helpful to defense counsel in much needed efforts to rid the common
law of outworn doctrines that give unfair advantage to plaintiffs’
lawyers. This is why.
First, the article sets forth a reasoned
and rational path for judges to follow in making legal changes in
current common law -- changes that could and should be proposed by
defense counsel. The article will facilitate acceptance of these
proposed changes by the state judiciary. The article was based, in
part, on the views of Michigan Supreme Court Justice Steven Markman
and was peer-reviewed by Federal District Judge Jack P. Weinstein,
Texas Supreme Court Justice Harriet O’Neill and Alabama Supreme
Court Justice Harold F. See, Jr. The article also was presented and
received a favorable response at the first Civil Justice Judicial
Education Symposium, sponsored by the American Enterprise Institute
and the Brookings Institute, which was held in Washington, D.C. at
the Georgetown University Law Center on December 9, 2006. More than
250 state jurists attended.
To the best of our knowledge, the
article is the first of its kind in attempting to state and discern
true “neutral principles” that can guide a court as to when stare
decisis should be followed or rejected. The article lists seven
principles that indicate when stare decisis should be put aside, and
three principles that suggest when stare decisis should be
respected.
Background
The importance of the article to defense
counsel rests on the fact that an overwhelming number of decisions
where stare decisis has been abandoned have favored plaintiffs’
lawyers. Nevertheless, this trend is not immutable and has rested,
in principal part, on how the practice of law is conducted.
Plaintiffs’ lawyers have every incentive to seek legal change and
persuade judges to abandon stare decisis. If they do not do so,
eventually their business model will shrink.
On the other hand, defense counsel are
paid by the hour and often can bring about favorable results within
the existing framework of law. Also, it is relatively easy for
plaintiffs’ lawyers to seek legal change at the trial level. Defense
counsel are burdened with many other issues at the time they
confront a major case including discovery, investigation, legal
analysis and the need to protect the serious interests of clients.
There is not always the time to look for opportunities to change
legal precedent and move the common law in the direction of the
defense. But the time has come to do so, and this article could be
of major help in achieving that worthwhile goal.
Jurists who have reviewed this law review
article and are familiar with its content believe that if defense
counsel brought to their attention the fact that prior precedent
should not be followed, and set forth principles as to why that was
true, change could and should come; stare decisis would fold and the
new resulting law would help defendants.
The article shows where common law has
been changed and stare decisis has not been followed. It shows how
the process has helped plaintiffs, but its core message focuses on
“neutrality.” In that regard and of great importance to defense
counsel are the examples set forth in the article showing where
existing precedent that helps plaintiffs may no longer be viable,
and that there are “neutral principles” to support change in and
abandonment of those precedents.
Some key areas where change through
common law judicial lawmaking could be made include:
-
Joint and several liability in mass
torts.
-
Preventing plaintiffs’ lawyers from
using what essentially is punitive damage evidence to augment
pain and suffering awards.
-
Changing rules for appropriate
review of pain and suffering damages.
-
Changing rules in regard to the
reliability of scientific evidence.
-
Changing rules in regard to assuring
that a defendant’s conduct actually caused an injury.
-
Limiting liability for pure
emotional harm claims.
-
Curbing rules that allow for
excessive punitive damages. This area of discussion is not
focused on constitutional limits, but ones that could and should
arise through the common law.
The article gives many other examples of
opportunities to change the common law to help defendants. The
article should also inspire defense lawyers to identify other
examples not discussed in the article, where old and outworn
precedents unfairly protect plaintiffs or are unfair to defendants.
Defense lawyers should focus on rules where:
-
The legal foundation underlying a
rule no longer applies.
-
A rule is no longer compatible with
the realities of modern society.
-
Procedural and other changes in
modern tort litigation make a rule that was developed when tort
law was more compact and involved one plaintiff and defendant
creates a need for altering existing tort law.
-
There are advances in scientific or
technological knowledge which invalidate an earlier doctrine.
-
A precedent exists really “on
paper,” so to speak, because it has been chipped away by
precedents but, nevertheless, it remains there as an unfair
weapon for plaintiffs’ lawyers.
-
A precedent led to unintended
consequences that might prompt a court to curtail an earlier
ruling.
-
Most courts in the Nation have
followed a new rule, resulting in a few that have refused to
abandon an old one, impeding a social goal that is important
within the state itself and to society in general.
All of these principles call for
a
change in precedents that may help plaintiffs. What is important to
you, as a defense attorney, is that they can also support change
that favors defendants.
The article also helps curb unwarranted
efforts of plaintiffs’ lawyers to expand plaintiff rights under the
common law; for example, to allow claims for medical monitoring. To
achieve this goal, the article sets forth neutral principles where
stare decisis should not be respected and where the need for
“stability” suggests that legal rules should not be changed.
The principles of stability include:
-
Where there has been significant
reliance on a rule, the change should be prospective at best and
perhaps totally inappropriate.
-
Prudent and clear concerns favor a
legislature making the change, not a court.
-
The change called for is too
fundamental and modifications in tort law in general should be
incremental.
We hope that you will find this article
of use. While it is an academic work, it should receive the respect
of state judges as a basis for fairly considering precedents and
thus have enormous practical effect. |
