Band 13, Heft 2

Adam Scales served as Chair of the AALS Torts & Compensation Systems Section Executive Committee in 2019–2020. As Chair, Scales helped create the panel for the 2020 AALS Annual Meeting on autonomous vehicle liability. In this piece, he introduces James Davey’s contribution to that panel. Later in the issue, Scales offers his own thoughts on the topic.

The United Kingdom has enacted legislation to govern the liability of highly autonomous vehicles. The chosen method is peculiar, with liability placed on motor (auto) insurers despite the lack of a corresponding liability on road users. This article seeks to explain why the UK government was so invested in maintaining mass market motor insurance policies (instead of a system based on motor manufacturer liability) and suggests that the answer lies in insurers’ desire to harvest customer data. We are the product.

Autonomous Vehicles (AVs) are likely to change a great deal about the practical workings of the liability system for auto accidents. However, we cannot know how just yet. Attempts to anticipate the future and preemptively redesign the liability system around its imagined contours are likely to invite error and frustration. Discretion often being the better part of valor, I suggest we muddle through a bit first.

Wrongdoing does not only produce the harm that is the subject of a tort suit. It also necessarily produces uncertainty regarding what would have occurred without the wrongdoing. As a result, in proving causation, plaintiffs must overcome an information deficit that is not of their own making. From case to case, there is variation in the degree of uncertainty about causation, and in the extent to which that uncertainty is fairly attributable to the underlying tort. However, the degree of uncertainty tends to be high in cases where defendants failed to take reasonable precautions, since the plaintiff must construct, almost out of thin air, the counterfactual impact of the untaken precautions. Likewise, where underlying torts involve concealment or the failure to gather or seek information, the directly generate uncertainty. In such cases, where a defendant’s conduct substantially or directly generates uncertainty regarding causation, the burden of proof should be modified so that the uncertainty does not inure to the benefit of the wrongdoer. The impact of burden shifting in such scenarios would not be radical, costly, or harmful to the aims of justice. Causation, properly understood, is intended to be a minimum threshold requirement, wholly distinct from the negligence and scope-of-liability analyses. Relieving a plaintiff from the burden of proving causation would not relieve the plaintiff from proving negligence and proving that the negligence foreseeably gave rise to a risk of the harm that befell the plaintiff. The current allocation of the burden of proof on causation produces results that are intuitively and strikingly unjust. Courts should be more ready to shift the burden of proof to the wrongdoer.

I am honored by the invitation to participate in this symposium on “What Practitioners Can Teach Academics About Tort Litigation” and to share my views from the defense side of government tort litigation. I have a foot in each camp of the practitioner/academic divide. For three decades I defended the federal government in Federal Tort Claims Act (FTCA) litigation, serving for the last 15 of those years as Deputy Director of the FTCA Staff in the Civil Division of the U.S. Department of Justice. I worked with the FTCA and its jurisprudence on a daily basis—litigating cases, assessing and negotiating proposed settlements, advising agencies and Assistant U.S. Attorneys, and commenting on proposed legislation. I left Justice in 2006 to become an academic, a role in which I have had the pleasure of teaching Torts to first year law students and the time and freedom to write about sovereign immunity, the FTCA, and other things.

Although medical errors are a leading cause of injury and death in the United States, only a small fraction of claims result in litigation, and the number of paid claims continues to decline. There are many reasons for the relatively small number of medical errors that result in medical malpractice litigation, including the prohibitive cost of procuring medical experts, caps on recovery, the long timeline of a med mal case from intake to verdict or settlement, and the outsized success rate of defendant doctors at trial. This article explores all of these topics, as well as common causes of action and notable plaintiff types.

Litigation financing of plaintiffs by financiers other than the law firms representing the plaintiffs in the litigation is now a multi-billion-dollar industry. Contrary to assertions by advocates for such litigation financing, such litigation financing does not increase fairness and justice to poor and middle-class victims. Instead, it creates substantial problems beyond any associated with standard contingent-fee agreements between plaintiffs and the lawyers who represent them. This article describes the multiple ways in which the litigation-financing industry harms poor and middle-class tort plaintiffs and generates inefficient uses of judicial resources and jurors' time. It then recommends actions that courts can take to reduce those problems.

The policy bases for American products liability law have developed largely through a series of state court cases that involved products sold to ordinary consumers. These cases featured significant disparities between manufacturers and injured consumers in understanding latent risks from product use, and in their ability to avoid the risks and to absorb and to distribute the costs of the risks. The policy bases that appear cogent for consumer products fail to explain or justify the imposition of liability in many industrial settings, which involve military or industrial customers that are well aware of the products’ latent risks and that have moral, common law, statutory, and regulatory duties to ensure that the industrial products are used safely.

When first hearing about a car accident and injuries many people, including academics, do not realize all of the issues that need to be considered when evaluating and reviewing whether a tort case can be filed. The various areas of investigation are discussed as well as other subtle areas, including the client background, that need to be considered before pursuing the case. In addition, alternative ways to resolve a car accident case are discussed.

‘Fighting the good fight’ is how some insurance defense attorneys view their position in civil litigation law as they work towards reasonable resolutions of personal injury damages claims and take the frivolous cases all the way to verdict. This writer was requested to analyze the day-to-day practice of an insurance defense litigator in tort matters. The focus of the paper was to provide those in the legal academic field with insight into defense litigation in the tort arena of personal injury matters. This paper endeavors to provide that insight along with suggestions as to areas of training that law students may benefit from if offered in law school to prepare them for the practice of law.