Is it me, or is the lunatic fringe pressing closer and closer toward the center? Sure, times are tough: Wall Street is in extremis, the real estate market has tanked, and only undertakers find hope in current economic indicators.
But I am not talking about arm’s-length despair. I am talking about something more deep-seated, something howling when a whisper would do. Let’s talk about blood-rage over a hangnail, shall we? Walk the halls of the civil courts and brace yourself against the fury.
One of my favorite social science concepts is marginal utility. Each of us responds to a calculus that requires us to calibrate efforts and reward. Put in less prosaic terms: Is the effort worth the potential return?
Freshmen economics courses focus attention of economic risks and benefits, but marginal utility is so much more supple. It isn’t merely a bean counter’s tool. Each of us has a utility function, a vast array of variables forming an equation best expressed, perhaps, in the term character. How do we assess things? What weight do we place on the flotsam and jetsam of our days? Some folks would not dream of waking to see the sun rise; others count the cost of an early rising as trifling compared to the grandeur of the world wakening. We each have our own utility function.
The law has not, sadly, evolved much beyond the freshman economics class. Were clients economically rational folks, business would be simple. An injured party would bring an action. The value of the case would be the damages an attorney could foreseeable prove, less the risk of an adverse verdict. Thus a party with $100 in injuries and a 25 percent chance of losing would have a $75 claim. If it cost more than $75 to defend the claim, settlement would make sense. It is as simple as that for naive economists.
But the world is not so simple. And neither are most litigants.
For starters, forecasting outcomes is difficult. Juries are fickle. I’ve won multi-million dollar verdicts in cases I would have settled for far less. And I’ve walked away from piles of money at settlement only to have a jury award far less at trial. Jury consultants claim to understand juries. I doubt they do any more than televangelists breakfast with God. .
The economic model of human behavior, the so-called rational man, is a fiction best left to cartoons. It lacks a dimension. Human behavior is best explained in terms of things such as taste, center of gravity, inherent sense of worth. We measure the content of our days not with a ruler or a calculator, but with a sense of felt necessity. The fact that many folks reach similar conclusions on similar issues means only that they are calibrated alike. Reason, I am saying, is merely a tool, or, as David Hume put it centuries ago, reason is the slave of the passions.
So what has all this to do with the law? We have created a civil justice system based on the premise that there is a community of reasonable minds. We also regard the litigants as rational actors seeking to maximize their utility along narrow economic lines.
But that is not the real world. Many plaintiffs are undone by anger long before they see seek out a lawyer. Some come to court looking less for justice than for validation. They want the court to vindicate their worth as a person. Thus the courts become a therapeutic clinic in which lawyers and judges play at therapy they are not trained to give. It is costly; it is wasteful. And it is probably futile.
The American rule fosters this. We don’t require losers to pay the costs of the prevailing party. This is simply wrong. It gives an angry plaintiff no stake in anything other than rage. The civil justice system works well in compensating people for real injuries. But there are injuries justice can’t address. Those don’t belong in court.
Norm Pattis is a criminal defense attorney and civil rights lawyer in Bethany.