Fall 2006 #3. Making the injured plaintiff whole: Maine tort damages in practice.

Authorby Benjamin R. Gideon

Maine Bar Journal


Fall 2006 #3.

Making the injured plaintiff whole: Maine tort damages in practice

Maine Bar JournalVolume 21, Number 4, Fall 2006MAKING THE INJURED PLAINTIFF WHOLE: MAINE TORT DAMAGES IN PRACTICEby Benjamin R. GideonThose who have been injured in an accident suffer in a number of ways. Most immediately, they sense pain and a worsening of their physical health. They are forced to seek expensive medical treatment for which they typically must bear at least some of the cost.

At the same time that they incur these additional expenses, the injury may prevent them from working or working as much. If the accident involved a car, they may lose their only form of transportation. The trauma, as well as the resulting pain and financial hardship, often leads to emotional problems, such as anxiety, stress and depression, and an unraveling of inter-personal relationships. It is no exaggeration to say that in many cases, a serious personal injury can completely change a person's life.

When personal injury plaintiffs meet with an attorney for the first time, it is often on the heels of a series of frustrating and humiliating events. They have shuffled from medical provider to medical provider without a cure. They have attempted, in vain, to get the insurance company to pay the medical bills. They have lost time at work and are feeling financially strapped. Relationships are strained. They are frustrated. They feel that nobody understands what they are going through or is willing to help. What they really want is just to have someone listen to them.

That is the purpose of the intake meeting with a new client. Listen. Lawyers too often feel that they need to do all of the talking, to come up with answers. But a good attorney-client relationship begins with listening.

Once you have listened completely to the client's story, it is time to discuss what you can and what you cannot do to help - to explain what can be accomplished through the civil justice process. The only thing it can promise is some financial compensation.

What we want to say as attorneys is that the promise of the civil justice system is to make an injured client whole for the injuries suffered. But what does that mean? It is a cliche that the civil justice process cannot undo the injuries caused by the accident. How does the legal system help ensure that the person is made whole? In order not to risk overpromising and underdelivering, I am not going to be able to answer these questions. Although this article will probably raise more questions than it answers, it hopefully will lead to increased discussion on these important topics.

The History and Purpose of Tort Damages

Common Law Origins

Every now and then it is helpful to take a step back and think about why we are doing what we are doing. Why does tort law exist in the first place? How did we decide what sorts of damages would be available? Placing our modern system in its historical context provides important perspective on the evolution of tort jurisprudence and remedies.

As with most of America's legal system, modern tort law finds its roots in the English common law. As John Locke wrote in the Second Treatise of Government: "he who hath received any damage has . . . a Right to seek Reparation from him that has done it." That is, it is natural law that a person has a remedy for a private wrong done to him by another. Thus, at the foundation of our society, when people consented to be governed, they did so on the implicit condition that the government would enforce legal rules that preserved the natural law right to redress of private wrongs. Blackstone wrote that it was the "settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury it's proper redress."

The foregoing concepts are regarded as the foundation for what today is known as tort law. In its earliest forms at common law, it was not primarily motivated by compensating the injured party, but by providing retributive justice to the injured party comparable to self-help vengeance in the natural state. Stated differently, the origins of our tort system lie not in the modern actuarial-type concerns of an insurance compensation regime, but in more fundamental notions of social justice - of righting wrongs. In this sense, the law helped to protect the vulnerable from the powerful, and preserve social order, something that disproportionately benefited the powerful who had the most to gain from maintaining a lawful and ordered society.

Tort Damages in America

The idea of tort law as a vehicle for achieving social justice expanded in the American legal system, beginning in the late nineteenth and early twentieth centuries when the old writ system was abandoned and "torts" were first recognized as an independent field of law.(fn1) Wigmore described torts as being based upon universal, "non-refusable duties," which created correlative "general rights."(fn2) Oliver Wendell Homes described "torts" as the law concerned with universal private duties "of all to all."(fn3)

In the introduction to the first edition of their influential treatise on tort law, Harper and James wrote:

The little affairs of the citizen, taken singly, are unimportant to any but the persons involved. In the aggregate, however, they are of immense importance to the community because the law that regulates them affects every member of society. In the aggregate, therefore, the principles of the common law which govern the rights of the parties reflect accurately the fundamental spirit of the times. They disclose the kind of...

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