Tuesday, 24 July 2012

What Do Lawsuits Have in Common with Predators? « FreeRangeKids

What Do Lawsuits Have in Common with Predators? « FreeRangeKids


Similar to my last post this piece relates to an animal that's found in most Childcare Centres and educational venues. No its not the Black Dog of Depression its his friend the Pernicious Poodle of Potential Liability.
Its written by a reader of Free Range Kids, a blog maintained by Lenore Skenazy, and provides an "inside" and common sense view of the civil litigation process. Even though the reader and the process she describes related to the US legal system, the principals and ideas described are still pertinent worldwide.


Hi Readers! Here’s a really thought-provoking piece about the OTHER fear haunting parents — and schools and parks departments and congregations and day care centers and scouting groups and…you get the idea. Read on! – L
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Dear Free-Range Kids: This blog is all about how the fear of injury, disease, abduction, or low IQ has turned parents into helicopters and locked our kids inside. After reading “Commandment Five: Don’t Think Like A Lawyer” in Lenore’s (utterly awesome and enlightening) book, Free Range Kids, I was prompted to write to her about a different fear: the fear of lawsuits. I am a lawyer, and today I want to help debunk the myth that our country is a collection of litigious jerks against whom we must protect ourselves diligently (a myth which persists even though most of us have never actually met one of these litigious jerks). First, I want to talk about lawsuits in general, and then I’ll talk about lawsuits and parenting.


Things to know about lawsuits in general

I am a law clerk for a judge in a trial court. “Trial court” just means we don’t handle appeals–we’re the lowest level court, which all judicial matters have to go through first. My courtroom handles a civil docket, which means we handle handle almost everything that isn’t divorce or criminal matters–this predominantly means lawsuits. I have been in this job for two years, and I have seen over 2,000 individual cases just in my courtroom alone. I also chat with the other law clerks in the other courtrooms about our most interesting cases. Frequently, we talk about the most ridiculous ones. What’s most striking to me, though, is how infrequently those cases come up. Keep in mind that each of us has approximately 1,000 cases a year, and 300 going at any one time.

In my time at court, I have seen perhaps 2 cases that were truly bunk. These cases really stick out. Of all my cases, that means that less than one percent of of them should never have been filed; one-tenth of one percent, in fact. Most of my cases have some value. And guess what? Both of these bunk cases resolved in favor of the defense. I’ll do you one better — neither were about crazy parents suing for stuff that happened (or could have happened) to their kids, nor were they brought against parents. They were about adults doing stupid things and then suing to paper over their embarrassing mistakes. Point being: the risk of a lawsuit by or against a parent is simply not that great.

The best stats I could find regarding the filing of bad lawsuits in general is here:http://users.polisci.wisc.edu/kritzer/research/rule11/rule11Jud.htm. After doing the math from these statistics, I (with help from my engineer husband) determined that in only 28 out of every 10,000 cases were sanctions imposed on lawyers for bringing a frivolous case. Once again, that’s less than 1%.

These are not perfect statistics, but it appears that they’re the best we have. They also don’t speak to the issue directly at hand (i.e., how often parents, and not just people in general, sue for ridiculous reasons), but we can probably at least accept that parents just aren’t running to lawyers every time their kid stubs a toe. Just as with all these other fears that Lenore highlights, the media hypes up the craziest cases, and the rest of us come away with the feeling that everyone is just looking for an excuse to sue. But that isn’t really the case.

Do people sue when they really have no reason to? Yes. But it’s such a tiny, fractional risk, it’s practically not worth worrying about.

If you do get sued, keep this in mind: when you finally get in front of a jury (which may not ever happen — the statistic thrown around in law school is that 94% of cases don’t ever get that far), the jury frequently assumes that the plaintiff is sue-crazy. It’s unfortunate, but people really believe that we live in an era where everyone hires an attorney for every little bump. And even if the plaintiff convinces them that their case has value, they get just enough money to handle medical bills and court costs – IF they’re lucky enough to get all that covered at all. Contrary to popular belief, plaintiffs don’t just get an arbitrary amount of money according to how much a jury thinks they deserve — they have to prove it up, and show how much money an accident has cost them. No one is getting an Italian villa, and even if a jury does try to award exorbitant damages, judges are able to reduce an unfair damage award. Furthermore, most organizations have insurance in order to defend against lawsuits, and many people who may have children in their home are already covered by homeowners insurance. So while a lawsuit is not fun, and can cause considerable expense and stress, it is also not likely to be the end of the world.


Lawsuits as they relate to parenting

I wish I could give more concrete stats about unnecessary lawsuits brought by or against parents, but they don’t exist. (Although I’m sure that at this very moment, some anal retentive lawyer is carefully picking through every single case ever filed in the United States to compile them for you.) I think we can agree that the statistics would probably follow along the same lines as the more general statistics listed above. In other words, such a tiny risk that you shouldn’t even bother to worry about it.

But what if the school/daycare/supervising parent does make a mistake, a serious one, and a lawsuit is warranted? We’re talking here not about frivolous suits, but the ones that could actually result in money awarded. Obviously, this happens – but not as frequently as people think. Please remember: (1) your child is unlikely to get injured or abducted in the first place, and (2) most people are reasonable and don’t want to be embroiled in a draining lawsuit even if they do have a really good case. To repeat: even when parents may have a perfectly good lawsuit, that doesn’t mean they’re going to go to a lawyer. I bet most of you have never met someone who was involved in one of these suits. I asked around, and NONE of my fellow law clerks (about 20 of them), NOR the Judge that I work for (who has been on the bench for over 20 years), has seen a case brought by a parent to recover for an everyday childhood accident or violence by a stranger, even ones that have merit. (I’m not including car accidents and medical malpractice – the types of things that are just as likely to injure adults.) This is despite the fact that our court encompasses a very large school district. That doesn’t mean these kinds of lawsuits don’t happen, but it does mean they don’t happen very much. Most parents just want their kids to be ok, and maybe want medical bills paid for if it has come to that; they aren’t out to make your life miserable.

As a lawyer, I need to sign off by saying that I am NOT your attorney, and none of this constitutes legal advice. But I hope it does make you feel a little bit better about the world your kids are living in. The bottom line is that people aren’t as litigious as you’d think, and lawsuits by parents for normal childhood injuries are rare.

So what can we do about this massive, unwarranted fear of lawsuits? We’d love to hear your ideas.

All the best! –Tiffany Gengelbach

Here are some ideas for helping to cut down on the fear of lawsuits:
(1) Try to spread the word that lawsuits really aren’t that common. People love to talk about our litigious society, but that really isn’t true. Most people would rather forego a completely reasonable lawsuit than be labeled “litigious” and go through the very difficult process that a lawsuit entails. While you’re at it, maybe point out that lawsuits are seriously no fun, and are extremely stressful, time-consuming, and expensive – maybe that will discourage unnecessary lawsuits!
(2) Shame the heck out of the people who bring frivolous lawsuits (as opposed to constantly suggesting that “you should sue for that!!”, which I see all the time on internet comment boards). The blog “Lowering the Bar” is a great resource for this:http://www.loweringthebar.net/
(3) Where you have the influence or power, try to get organizations to self-insure so that they aren’t subject to arbitrary rules by insurance companies. Even though you pay them to defend you against lawsuits, insurance companies are afraid of having to spend their money on an unpredictable suit even though it probably won’t ever materialize. It’s not their fault – they need to protect their business just like everyone else. Still, they are looking out for every single little thing that could cause a lawsuit, no matter how unlikely. This kind of thinking encourages fear and contributes to the feeling that a lawsuit is just a matter of time.
(4) Ask your state legislature to provide greater governmental immunity to schools for injuries.

(5) Ask your state legislature to add rules saying that parties who lose in court have to pay attorneys fees. Right now, under the “American Rule,” each party must pay his own attorneys’ fees, except in certain limited circumstances. Under the “English Rule,” the loser pays. The English Rule could cut down on filing lawsuits and encourage people to talk things out ahead of time.

(6) Don’t be afraid to apologize when you’ve made someone upset. Though you shouldn’t admit that you are liable for any damages, just connecting on a personal level can do wonders to avoid lawsuits. A simple, “I’m so sorry little Kimmie got hurt,” is often a great way to soften someone.
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