A red car and one black crash in an accident

A lot of very smart people have been puzzling and arguing over the high cost of civil litigation in the United States for at least 50 years.

Is it because there is too much litigation (driving up the price)? Is it caused by the distortive role of insurance, which is in play (and, in fact, is central) in almost all U.S. civil litigation? (How insurance companies contribute to the high cost of U.S. civil litigation is a subject for another day.) Is the high cost of U.S. civil litigation caused by “frivolous litigation,” in particular, in which opportunists supposedly exploit our dispute resolution system (that is, our courts) to blackmail defendants? Is it the wide breadth of “discovery” that U.S. courts give litigants, as compared to courts in other countries?

“A Tough Knot to Crack” (photo by Jay Fanelli)

We answer, “Yes.” It is all these things and then some. It is a tough knot to crack.

Imagine, if you will, a truck driver, driving through a stop sign, colliding with a driver on the cross-street (who had no stop sign). Imagine that the “cross-street driver” was not speeding at the time.

In a perfect world, this would not be a lawsuit at all, let alone an expensive one. The truck driver would admit his negligence. (Going through a stop sign without stopping would seem to be negligent, no?) The cross-street driver would not overreach on his damages. Money would change hands.

Not so fast. In Simondet v. Enga, with these facts, had to go all the way through jury trial. And it might have to go to a jury twice…

In the first jury trial, the truck driver raised the “emergency rule” negligence defense.


Simondet v. Enga at p. 6.

What was the truck driver’s supposed emergency? He got something in his eye.

To our surprise, the judge accepted this as “an emergency” sufficient to put give instructions on this defense to the jury and, to our surprise, the jury bought it. The Court of Appeals reversed and remanded the case for a new trial.

Do we blame the trial court judge? Do we blame the defense lawyers for making this stretch of an argument? Do we blame the common law system, which makes rules and then exceptions to the rules so the rules seem malleable and manipulable?

Again, we answer, “Yes.”

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