Lawsuits in a Market Economy: The Evolution of Civil Litigation

The first book in the 2021 Alternative Reading List is Stephen C. Yeazell’s “Lawsuits in a Market Economy:  The Evolution of Civil Litigation. “ The book was published by the University of Chicago Press in 2018 and is in its first paperback edition.

This book tackles a very ambitious topic – the way civil litigation works in contemporary America and how it got to be that way – and does it in a very short amount of time.  Professor Yeazell, a Professor Emeritus at the University of California,  Los Angeles, examines the legal and economic dynamics involved in contemporary litigation and seeks to explain how the civil litigation system got to where it is and where it might go from here.  The book explores some of the commonly-held myths about civil litigation and tries to show the reality of the majority of civil cases filed each year in this country.  Although written for the non-lawyer, this book has a wealth of information relevant to lawyers in it and is written in an easily accessible style with very little legalese or jargon.

This book was selected by Professor Jan Fleckenstein.  Professor Fleckenstein’s biography on the Syracuse University College of Law’s website tells us that she is the Director of the Law Library and an Associate Teaching Professor of Law on the College of Law’s faculty.  Professor Fleckenstein has a B.A .degree from LeMoyne College, and her M.L.S., M.S./IRM, and J.D. degrees from Syracuse University.

A list of focus questions designed to help you get the most out of “Lawsuits in a Market Economy” is available as a separate document.

 

Focus Questions :

These focus questions are intended to aid you in the active reading of Stephen Yeazell’s “Lawsuits in a Market Economy,” one of the books selected by the faculty of the Syracuse University College of Law  to help prepare you for your time studying law.  This book was chosen by the Professor Jan Fleckenstein.

The questions are written with the intention of helping you.  You won’t be tested on your answers and you can feel free to read the book without them should you choose.  And there aren’t any correct answers for these questions.  It’s more important to question the text and reflect on what the answers might be than to seek for a definitive “correct” answer.

The questions are designed to model the process of active reading, which is a skill with which you should already be familiar.  Active reading is a crucial skill for doing well in law school, and the more adept you become at it before you come to school, the better you will do during your time here.  If you would like to learn more about active reading, there will be content discussing the topic in more depth on the Legal Writer’s Toolkit site.

You shouldn’t assume that these questions indicate a point of view or that they’re trying to steer you to answer them in a particular way.  Rather, they’re intended to provoke you to think critically about what you read and to help you form your own conclusions, based on the information the author gives you about the topics discussed in the book.

We hope you enjoy Lawsuits in a Market Economy,, and we look forward to meeting you and working with you over the course of the next few years.

 

PREFACE

  1. The author discusses the “dynamics of civil litigation” – the business side of civil litigation – a thing he hadn’t studied in law school or read about in the scholarly literature. Does this surprise you?  Do you think these matters are important to litigators?  To law students?  If so, why do you think law schools and legal scholars haven’t paid much attention to them?
  2. Are you surprised to learn that the picture of “typical” litigation looks different from that shown in the press?

INTRODUCTION

  1.  Are you surprised to learn that lawyers in 1900 feared that the legal system was “droning in repeated trials of the same case, never achieving finality?”  Had you considered that this might be a possibility or had you assumed that the system had mechanisms in place to solve such problems?
  2. The author describes the opposite concerns at the start of the twenty-first century, mentioning the symposium titled “The Vanishing Trial.” As someone just starting out in the law, do you feel that there are too many trials? Too few?  Is the number just about right?
  3. Do you believe that many civil trials are “frivolous,” “base,” or “unwarranted?” What are the characteristics of claims that would fall into these categories?
  4. Do you view the term “trial lawyers” as a pejorative one as did the Republican party in 2004? Is the question of whether or not there are too many trials a political one?
  5. The author says that “civil litigation and the legal system are too important to leave to the lawyers.” Is he correct?  Does his mention of the Republican party’s 2004 interest in civil litigation suggest that these things are not, in fact, being left to the lawyers?  Other than direct political engagement, what types of influence could citizens exert on the legal systems of this country?
  6. Are you surprised to learn that private criminal prosecution was the normal way of doing things in the past in this country? What are the advantages and disadvantages of this approach?  Should we return to this model?
  7. The author describes punitive damages. Have you given thought to this type of damage award before?  Do you agree that there should be punitive damages available to a plaintiff?  Should we do away with punitive damages or award them more frequently?  What type of civil defendant should have to pay punitive damages? Why?
  8. The author mentions how civil litigation is financed. He omits a discussion of contingency fee agreements here, although he will discuss those agreements later in the book.  Based on what you know now, should the US keep its approach to litigation funding or should it adopt a “loser pays” approach?
  9. The author describes the role of local judges in the US, something that is not typical in other countries. Is this a strength or a weakness of the US system?  Is it something we should maintain or change?
  10. Had you considered the role that car loans, mortgages, and insurance might play in civil litigation? Now that the author has mentioned these factors can you see how these relatively recent developments might have had a profound effect on the way civil litigation is conducted?

Chapter One

  1. The author writes that many foreign lawyers come to US law schools knowing a lot about US law, some of it accurate and some of it incorrect. What do you “know” about the US legal system as you prepare to study law?
  2. The author describes a simple situation in which litigation could be brought in four different courts. Can you imagine more complicated situations in which the number of courts possibly involved could increase?  Do you imagine there are rules governing the choice of court?  What law should apply when a case is brought before one of the many possible courts?  Will it always be the same law?  How should that decision be made?
  3. Have you ever sat on a jury, civil or criminal? Are you surprised to learn that the US has juries in some civil cases?  Are you surprised to learn that other countries do not have civil jury trials?  Is it a good or bad thing that even complex cases can be ruled on by juries with no training in the areas under consideration?
  4. Are you surprised to learn that contract disputes “dominate civil dockets?”

Chapter Two

  1. What is your reaction to the excerpt of Jimmy Carter’s speech included at the start of this chapter? Instinctively, without further thinking or reading, how do you respond to President Carter’s assertion that “we have made justice more cumbersome, more expensive, and less equal than it ought to be?”
  2. The author appears to assume that all lawyers are engaged in civil litigation. Is this a correct assumption?  If not, does it invalidate some of the author’s claims?
  3. The author explains why statistics from state courts make it difficult to draw data-based conclusions about the level of litigation in much of this century. He then starts to draw some conclusions about the level of litigation.  Should we trust or mistrust these conclusions?  Do the numbers – incomplete as they are – tell us anything that we can use when considering how much civil litigation there is in this country?
  4. The author describes different approaches found in other countries. Do you think the US’s adversarial approach in the best one?  Why?  Why not?  Are there any benefits to the judge-centered approach the author describes?
  5. The author describes what he calls “regulatory barriers” to the practice of law. Do you think such barriers are appropriate?  Necessary?  Should we re-think the way people become lawyers in this country?  What changes would you make?
  6. You probably assumed that most civil cases settled but are you surprised to learn that between two-thirds and four-fifths of cases settle?
  7. The author discloses that of those tort cases that go to trial, the plaintiff prevails in about 50% of them. Does this surprise you or did you assume that the parties would be roughly equally successful at trial?
  8. The author presents data reflecting the average dollar awards in civil litigation. Did you expect cases to be worth more than the majority of cases appear to be worth?  The author gives an example of one case that skewed the numbers for a year.  Do you suspect that such cases occur regularly?
  9. The author uses a calculation of dividing state civil lawsuits into the GDP to produce a number that, he claims, reflects the litigiousness of the country. Is this a sufficiently sensitive measurement to determine litigiousness?

Chapter Three

  1. The author says it’s not true that poor people can’t find good legal representation, but the examples he provides for situations for which poor people can find representation are strong cases with significant money damages on the line. Is this a sufficient repudiation of the belief that poor people can’t find good legal representation?  The author acknowledges that poor people seeking to defend against litigation likely will fail to find good representation, but how about poor people seeking to engage the civil litigation system in other ways?
  2. The author discloses that the great variable in the cost of civil litigation is the cost of discovery. Did you expect that to be true?
  3. The author runs through a brief and truncated history of the USA’s recent economic history. Was this history familiar to you?  Does the author’s history seem over-simplified or does he hit the major points of the development of the current economic situation?
  4. Had you thought about the importance of homes and automobiles to litigation? Does using the lens of litigation to view all aspects of modern life give you a different view of contemporary society?
  5. Have you heard of the contingent fee approach for reimbursing lawyers? Is it a necessary approach to counter the structural advantages possessed by defense lawyers?  Or does it encourage unnecessary litigation brought mostly to pay lawyers?
  6. Are you surprised to read of the ways the plaintiffs’ bar can finance litigation, or had you assumed that such arrangements were normal? Is it odd to hear of plaintiffs’ side litigation spoken of in terms more familiar from business (bank loans, joint ventures, and so on)?
  7. Did you know that some federal claims allowed a winning plaintiff to recover attorney fees? What do you think about this idea?  Should it be expanded into all types of litigation or should it be abandoned?
  8. Have you experienced a situation such as the one the author describes, in which you had a strong claim against someone but decided not to pursue it because the cost of the litigation would be greater than the recovery? How did you feel about that, or how would you feel if you were in such a situation?  Does this type of situation encourage shoddy work by making it difficult to hold the worker accountable?  Is this type of situation an argument in favor of symmetrical fee shifting?
  9. The author describes the case on which the movie Erin Brockovich was based. Have you seen the movie?  Do the facts as the author describes them support the type of fee arrangements we have for lawyers in this country?  Note that while hexavalent chromium is known to be toxic when inhaled, the author observes that there is significant debate about safe levels of the substance when it is waterborne.  Why, then, do you think the defendant settled for $333 million?
  10. If you are a poor defendant, is it comforting to read that a rational plaintiff will likely not sue you if you have no assets? What if you have just enough assets to cover the verdict, but paying those damages would leave you with nothing?  Should defense counsel be provided by the state in divorce/child custody and tenant cases?

 

 Chapter Four

  1. You’ll study civil procedure, and many of the rules the author talks about in this chapter, in your first year of law school. Before you do, did you have a sense of how significant these rules are and what a change they’ve had on the way litigation is conducted?
  2. The author describes the astonishment of foreign lawyers and litigants when they “realize the breadth and depth of American civil discovery.” Do you have a sense of how extensive the discovery process is?  Have you worked in a civil litigation form or been a civil litigant?  Hove you ever seen a set of document requests or interrogatories (written questions)?  Have you attended a deposition?
  3. Are you surprised by the appellate court’s ruling in the Klonoski case? Do you understand, after the author’s discussion of the case, why the court ruled as it did?  Do you agree with the decision?  Why, or why not?
  4. What are your feelings about lawyer advertising? Is it appropriate that lawyers are allowed to advertise?  Should lawyer advertisements be regulated more closely or should lawyers be free to say what they want?
  5. The author writes of the dangers of settlement mills. Given the discussion up until now, was the existence of settlement mills something that could have been predicted?
  6. Had you considered arbitration’s role in civil litigation before reading this chapter? Do you see advantages and disadvantages in the arbitration process?  Who benefits the most and who loses from mandatory arbitration?
  7. Have you considered the role of class actions in contemporary litigation? Have you been a member of a class?  Did you recover damages as a member of a class?  Do you see the dangers in what the author calls the “irremediable harm?”  Do you think the class action is the best solution to that problem?
  8. The author presents the two opposing viewpoints concerning the dispute over notice pleading. Which side has the better argument?  Do both sides present compelling arguments?  How should the dispute be resolved?
  9. Do you understand the dilemma that the Twombly and Iqbal cases might present for plaintiffs? Are the Supreme Court’s decisions, as described by the author, appropriate responses to the problems caused by notice pleading or do they push the pendulum too far in favor of defendants?
  10. The author makes the point that the Supreme Court’s decisions on procedural matters are only binding on the federal courts and that the vast majority of civil litigation happens in state courts. Had you recalled this distribution as you were reading this chapter?  Does this realization change any of your thoughts on the topics discussed in this chapter?

Chapter Five

  1. The author describes the politicization of civil litigation as an “interesting” phenomenon. Have you noticed this phenomenon?  Are you surprised by it?  Do you agree that litigation should be a political phenomenon?
  2. Do you agree that litigation has caused some of the effects that Republicans assert, in particular that it has forced manufacturers out of business and has caused health care costs to increase? Or are these assertions excuses to limit litigation offered by defendants who don’t like litigation, with alternative reasons for the decline in some industries and the increase in costs in others?
  3. How do you think the author feels about Republican claims made against lawyers who bring lawsuits?
  4. How do you think the author feels about Democrats and the way they have legislated in areas that affect civil litigation?
  5. Is litigation a good substitute for legislation? Is it an appropriate one?
  6. Do you see why the author says the political parties’ positions on civil litigation appear to be misaligned? Do you agree?  Are you surprised by this assertion, given what you thought about litigation and the way the parties discussed it?
  7. The author describes the origins and effect of the term “trial lawyer.” The author doesn’t mention, though, that in order to have a trial there have to be lawyers representing both the plaintiff and the defendant. Why is it, then, that the term “trial lawyer” is only used to describe lawyers representing plaintiffs?
  8. Is a lawsuit that asserts a novel or contested claim a “junk” lawsuit?
  9. The author notes a study that showed that in the sampled states, tort litigation represented only about ten percent of the caseload. The author doesn’t tell us how many states were in the study or which the states were.  Even if the ten percent number is reflective of the country as a whole, does that percentage justify calling tort litigation “peripheral?”
  10. In his discussion of why the arguments bout civil litigation have subsided, at least temporarily, the author refers to :George W. Bush” and “Clinton.” He likely does this to distinguish between George H.W. Bush and his son, but what effect does supplying the first and middle initial of one person, and only the last name of the other, have on the reader?  Is there a lesson here for legal writers?

Chapter Six

  1. The author says that for lawyers with active torts practices (he neglects to say, but intends for us to understand, active torts practices on behalf of plaintiffs), “the most frequent audience hearing evidence will be an [insurance] adjustor.” Does this surprise you?  Is this an ideal state of affairs?  An appropriate one?
  2. The author describes sliding scale agreements. Do they seem like a good idea to you?  Shy do you think some states have rendered such agreements unlawful?  Who is harmed by such an agreement?
  3. Are high-low agreements a good idea? Should states find ways to discourage trials rather than encourage them?
  4. The author declines to analyze the ethics of the proposed Vioxx settlement he describes. What do you think about the proposed approach?  Was that an appropriate attempt to settle a case?
  5. Had you considered the notion that civil litigation is a market? Does that idea concern you or do you it’s an appropriate development?
  6. Are you surprised to learn of the lack of data concerning litigation settlements? Do you see why this might be a problem?  Can you think of ways in which it might be as much of a problem as the author suggests?  Is the author correct that the pressure to create a national settlement database will become “irresistible?”
  7. The author asserts that small claims courts are inevitably biased towards better-educated and wealthier people but offer no support for this assertion. Do you think the author is correct or not?  Have you ever been to small claims court?  If so, what were your impressions of the experience?
  8. The author proposes two possible futures: the regulatory and the litigation states.  Which of these two futures looks better to you?  Is one or the other of these states more or less likely to occur?  Why?
  9. Is arbitration a valuable tool that aids in the swift resolution of disputes or a way to deprive people of chance to receive fair compensation for their damages?  Would your answer be different if you knew that the attorney in the Erin Brockovich case, discussed earlier, agreed to binding arbitration in that case for all the plaintiffs in the lawsuit?
  10. Are you surprised to see the future of civil litigation discussed in terms of procedural rules? Did you imagine that rules of procedure would have such a substantive impact on litigation?