Increasingly, the civil justice system [in the US] seems to be two different system…
— from “Comparative Litigation Rates” by J. Mark Ramseyer & Eric B. Rasmusen, Harvard Law School, 2010
For the past 40 years, at least, boaters have been sailing happily down the San Juan River in the late spring and early summer, to a location about 12 miles south of downtown, where Trujillo Road swings right along side the river and makes the take-out and loading of kayaks or rafts a relatively easy matter. As Pagosa Springs slowly developed its tourism economy, starting in the 1970s, the number of boating excursions grew, and commercial rafting companies arrived to provide rental boats, and to host paid trips.
Last year, Pagosa boaters, and the governments that support them, were surprised when the owners of the take-out property near the 12-mile marker — the Southern Ute Indian Tribe — announced that boaters would no longer be allowed to use that particular take-out, unless they were willing to drive to Ignacio and obtain a permit. A 100-mile round trip from Pagosa Springs.
In a moment, we’ll listen to Archuleta County’s full-time attorney, Todd Weaver, explain why the County government might want to establish a similar permitting system — if the County were to agree, that is, to take possession of a different, one-acre take-out spot near the same 12-mile marker.
County Commissioner Ronnie Maez, during an hour-long discussion with two Town government representatives and with Tobi Rohwer of the Friends of the Upper San Juan River, consistently expressed hesitation about the County owning the proposed one-acre parcel. Why couldn’t the ‘Friends’ own the parcel? Why couldn’t the Town own the parcel? How about the Town and County jointly owning the parcel?
How complicated can we make this?
Attorney Todd Weaver:
“Whenever you rent out the Fairgrounds or any other facility that the County owns, there’s an agreement or a license that has strong provisions that protect the County…”
Attorney Weaver obviously felt comfortable creating a mass of red tape, around a five-minute take-out operation conducted beside a County road.
Town Planning Director James Dickhoff:
“Is the County having problems with your other facilities, that we would have to be so meticulous about this issue?”
Attorney Weaver:
“Sorry. My job is to protect the County and that’s what I’m going to do. And if that requires that we require a [take-out] license, that’s what we’re going to do.”
I mentioned yesterday, in Part One, that America has more attorneys, per capita, than we have doctors, per capita — and our nation has a sad reputation for excessive litigation. That reputation in turn results in excessive fees and costs placed upon the shoulders of the consumers, to cover — for example — medical malpractice insurance and a host of other litigation threats. We see fear in the eyes of certain government and business leaders.
If we look at the global situation, however, we find that Australia has about as many attorneys, per capita, than the US. France has more judges, per capita, than the US. Canada has higher car insurance rates than the US. But the US has this reputation for weird civil lawsuits that result in huge awards and settlements.
From a 2010 research paper by J. Mark Ramseyer & Eric B. Rasmusen, for the Harvard Law School:
Stella Liebeck ordered coffee at a McDonald’s drive-through and promptly spilled it on her lap. Because of the absorbent sweat pants she wore, she suffered severe burns. She sued, and a jury awarded her $2.86 million, cut by the judge to $650,000.
Eventually, Liebeck and McDonald’s settled out of court for an undisclosed amount.
The research paper continues:
Spill, sue, go home with $2.86 million. The courts-as-demented-slot-machines story shocked most readers, and the case’s eventual settlement got buried in the back pages of the newspapers. As odd as the bizarre verdict, however, was the positive press it earned among legal professionals. Predictably, the trade association for the plaintiffs’ bar (formerly the American Trial Lawyers Association; now pleasantly refurbished as the American Association for Justice) celebrated the award as a victory for truth and justice. More curiously, even prominent law professors found good things to say about $2.86 million for a coffee spill.
This story got plenty of news coverage back in 1994, and since that time, major vendors of coffee, including Chick-Fil-A, Starbucks, Dunkin’ Donuts, Wendy’s, Burger King, hospitals, and McDonald’s have been defendants in similar lawsuits over coffee-related burns.
American judges have the authority to dismiss lawsuits as ‘frivolous’ — which sometimes leads to the practice, on the part of attorneys, of ‘shopping’ for lenient judges who are more likely to allow cases where an accident could easily be viewed as the fault of the person who spilled her coffee on herself.
The research paper quoted above suggests that, generally speaking and all things considered, American courts operate very much like courts in other industrialized nations — and produce similar outcomes. But we have our particular quirks.
From an article by reporter Kevin Drum, published in 2010 in Mother Jones magazine:
Why is America more litigious than Europe? With the obvious caveat that not every country in Europe does things exactly the same way, here are a few reasons…
In civil cases, most European countries have adopted a “loser pays” rule. If you sue and lose, you have to pay the other side’s costs. This obviously makes people think a lot harder before they decide to file a suit.
America is one of the few countries in the world — maybe the only country in the world? — that allows ‘contingency’ based lawsuits. Essentially, there is no penalty for filing a frivolous lawsuit, because the plaintiff’s attorney gets paid only if he wins the case — but often gets 30–40% of the judgement plus the expenses of the case. The defendants, meanwhile, must pay their lawyers regardless of whether they win or lose. It’s rare, in America, that a court requires the plaintiff to pay the defense’s costs. No other industrialized country has this system. Most have a “loser pays” rule. Therefore the attorneys are much less likely to file a frivolous case.
Then we have the time-honored American tradition of jury trials. In most European countries, lawsuits are tried in front of judges. In the US, the constitution guarantees jury trials, and juries are often more likely to award damages in an apparently frivolous case than a panel of (cynical?) judges.
So, how about this boating take-out issue? Will fear prevail? Will our unfettered access to parks and rivers and other recreational amenities go the way of the dinosaur, at the insistence of government attorneys?
At the conclusion of the May 14 discussion, Commissioner Maez summarized his thoughts.
“I think negotiating and working it out is going to be easy. Might take us a little more time, and frustrate each and every one of us, too. But we all gotta do what we gotta do, to protect our own interests… Speaking for myself, I think we can get the money to do the purchase…”