9/11 Plaintiffs Sought Truth and Justice

I have long resented the depictions of the tort system as a lottery, as a crude and inefficient regulatory system that reduces injuries to costs, and the critique that glorifies mediation and "ADR" as somehow more civilized than litigation and trial.  None of it rang true to me in my 30 years making my living as a tort lawyer.

Mediation has its place - but the ideology of cost and benefit reduces justice to that single unconscionable metaphor - money.  Its digitized heart ignores the analog - the beat of the heart which drives the discovery of truth, the adjudication of wrongs, and the fixing of compensation.  

Some may seize on the order of Judge Hellerstein accepting the report of mediator Sheila Birnbaum to complain that fear of liability judgments drove settlement costs up in the cases of the 9/11 airplane and ground victims families.  The plaintiffs rejected the settlements offered by Kenneth Feinberg, the standing master of the September 11 Victims Compensation Fund.  They chose litigation.  In a revealing survey Southern Cal law professor Gillian Hadfield explains why they sued:

"for many potential claimants, the choice between accepting a payment from the Fund and going to court was not exclusively, or even primarily, framed as a financial calculation. It involved not an easy trade-off between a guaranteed dollar payment and a gamble on a ‘‘pot of gold,’’ but a deeply troubling trade-off between money and a host of nonmonetary values that respondents thought they might obtain from litigation. These values included information from otherwise inaccessible sources (the decision makers who determined airline and World Trade Center fire safety procedures, forexample), accountability in the sense of public judgment about whether those on whom victims depended for their safety did their jobs, and responsive policy change making sure that lessons were learned and heeded in the future."

Tort litigation is not just about risks, accidents, and costs.  It is about judgment and recourse.  And citizens recognize it when the "tort reform" fog lifts.  We have reason to hope that is part of the change that came to America in Novermber 2008.   Last week's Levine v. Wyeth decision on drug product liability may be a harbinger of restoration of the function and purpose of tort law.

As I described it a couple of years ago in the Penn State Law Review:

"Tort law asks what constitutes socially unreasonable conduct and, by reasoned judgment, allocates liability, and assigns responsibility. Tort shares that public function with many institutions. But tort law is unique in that it is essentially private law. The parties are not the public, nor strangers to the controversy, but rather are the actors and victims themselves. As the system has evolved two key elements should be observed: tort law measures the conduct of all parties, allocating responsibility among them, and it gages conduct in context. What is socially required is determined, as we learn in the first semester of law school, by what constitutes reasonable care under the particular circumstances."