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Litigation-Mania in England, Germany and the USA: Are We So Very Different?*

Published online by Cambridge University Press:  16 January 2009

Basil S. Markesinis
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This paper was prompted by the feeling that the differences between the systems under comparison are not as great as they are commonly believed to be and by the knowledge that lawyers in each of these countries tend to have a vague if not distorted picture of each other's laws. The way I have tried to approach my subject has been through the use of statistics so, before I say anything about the differences between the systems, real or apparent, let me make some cautionary remarks.

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The Cambridge Law Journal , Volume 49 , Issue 2 , July 1990 , pp. 233 - 276
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Copyright © Cambridge Law Journal and Contributors 1990

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References

1 Judicial Statistics (Cmnd. 428) 1987, pp. 35–6. The figures are for “money” plaints; if one includes plaints for the recovery of land, they become, respectively, 22,616 and 155,239. Ibid. at p. 41.

2 Ibid., p. 79.

3 The estimates given in Table 1 are taken from Professor Abrahams, , The Judicial Process (1986) p. 23Google Scholar. The number of federal judges includes 9 Supreme Court Justices, 158 judges of the US Circuit Courts and 576 judges of the District Courts. To this total of 753 one should add other federal judges such as: the bankruptcy judges (232), the federal judges of the US Tax Court(19), the Court of Military Appeals (3), the Claims Court (16), the Court of Appeals for the Federal Circuit (12) and the US Court of International Trade (9). One should, perhaps also include all “senior” (i.e. retired) appeals judges and district judges voluntarily serving on a full or part time basis as well as US Magistrates.

4 Kakalik, and Pace, , Costs and Compensation Paid in Tort Litigation (1986), p. 9Google Scholar. This and other statistical studies quoted in this paper were published by the Rand Corporation.

5 Kakalik and Pace, op. cit., p. 9 note 19.

6 Reproduced from Markesinis, , The German Law of Torts, 2nd ed. (1990Google Scholar.

7 Thus, the equivalent of our tort case of Ward v. Tesco [1976] 1 W.L.R. 810 is BGHZ 66,51 and it was heard by the eighth civil division of the Federal Court which, normally, deals with sales of goods and leases. Since the plaintiff also won on tort grounds, the sixth civil division could also have heard the case.Finally, since culpa in contrahendo is a contractual doctrine the case could, in theory, also have been claimed by the seventh division which handles contractual disputes. Other divisions could handle and have handled such claims which we classify as tortious. For examples see Markesinis, , The German Law of Torts, 2nd edn. (1990)Google Scholar, chapter 3, section B.2. This problem of proper or, rather, consistent classification also exists at the state level in the USA where, apparently, “not all state courts distinguish tort litigation from other civil cases such as commercial and contract writs”. Hensler, , Vaiana, , Kakalik, , Peterson, , Trends in Tort Litigation. The Story Behind the Statistics (1987), p. 6Google Scholar.

8 The average time of a disposal of a case by means of a judgment on merits in the BGH is 15.8 months. For more precise details depending on the nature of the dispute see Table 2. The average time from issue of writ to judgment by the BGH seems to be 342 months.

9 Kakalik and Pace, op. cit., p. 7.

10 California and Illinois (Cook County in particular) seem to have received enormous attention whereas other states are hardly ever mentioned. Even between these two states the differences can be impressive. For example, punitive damages were awarded in business/contract cases three times more often in major urban Californian jurisdictions than they were in Cook County. Punitive Damages. Empirical Findings (Rand publication 1987), p. 34. Punitive damages are not as easily available in Louisiana—a state with a civil law background.

11 On this see: Viney, and Markesinis, , La Reparation du Dommage Corporel—Essai de Comparaison des Droits Anglais et Français (1985), para. 30Google Scholar.

12 Grimshaw v. Ford Motor Co. 119 Cal.App. 3rd 757. Punitive damages in product liability cases have caused much discussion yet the Rand Corporation study quoted above (p. v) states that “our analyses indicate that punitive damages were awarded in only four product liability cases in San Francisco and two in Cook County from 1960 through 1984”. Apparently, before 1980 60 per cent, of all punitive awards occurred in intentional torts. After 1980 the percentage dropped to 22 and business/contract cases generated 67 per cent, of all punitive awards. Ibid., p. 19. About 2 per cent, of trials involving personal injury resulted in punitive awards (Ibid., p. 11). In another study by a Rand Corporation team—Hensler, Vaiana, Kakalik and Peterson, op. cit. note 7, above, at pp. 227—3 it is said “that awards most likely to be viewed as ‘excessive’… are most likely to be cut substantially”.

13 On this, see Galanter, , “Reading the Landscape of Disputes: What we know and don't know (and think we know) about our allegedly contentious and litigious society”, 31 UCLA Law Rev. 4(1983)Google Scholar and, especially, Galanter, , “The Day after the Litigation Explosion”, 46 Maryland L. Rev. 3 (1986)Google Scholar. For a more nuancé description see Hensler, Vaiana, Kakalik and Peterson, op. cit. note 7, above, at pp. 14–24.

14 “Tort Law and the Alternatives: Some Anglo-American Comparisons”, 1987 Journ, Duke L.. 1002, p. 1005Google Scholar.

15 Fleming's, JohnThe American Tort Process (1988)Google Scholaris one of the most recent and it provides rich references to further related literature.

16 See, for example: How Courts Govern America (1981) andThe Product Liability Mess (1988). For a more restrained account see Atiyah, and Summers, , Form and Substance in Anglo-American Law (1987), chapters 10 and 12Google Scholar.

17 E.g. Horwitz, , The Transformation of American Law 1780–1860 (1977)Google Scholar, severely criticized by, among others, Schwartz, , “Tort Law and the Economy in Nineteenth Century America: A Reinterpretation” 90 Yale L.J. 1717 (1981)Google Scholar; idem., “The Character of early American Tort Law” 36UCLA L. Rev. 641(1989).

18 I shall return to this point below.

19 Thus, for example, the Sūddeuische Zeitung reported in its issue of 26 June 1989 that the Deutscher Gewerkschaftsbund (German Trade Union Association) had recorded 292 instances of asbestos-related complaints—46 of them being fatal. It would be interesting to see a comparative study of social security payments in comparable situations in England and Germany in order to explain the apparently total lack of litigation in Germany.

20 A number of amusing/outrageous examples are given in U.S. News and World Report, 4 December 1978. For those who collect these stories the Californian Lawyer, July 1989 vol. 9, no. 7, p. 34 contains the latest outrageous example: A fifteen year old girl and her mother filed a claim against the girl's boy friend claiming 14953 for “the cost of the shoes, flowers and hairdo (that the girl) nevergot to wear’ because the boy ”stood her up for the date. Filing the claim cost $31–75.” This type of situation has, apparently, led to court filings in the past. See U.S. News and World Report 1978, p. 50. Stories like these, and the one with which Mr Bernard Levin entertained his readers (The Times, 29 June 1989) are amusing, but they are dangerously misleading if they provide, as they often do, the only conception that ordinary people have about the American system and how it works in practice.

21 Fleming, op. tit., p. 131.

22 Chin, and Peterson, , Deep Pockets. Empty Pockets. Who Wins in Cook County Jury Trials (1985), p. viiGoogle Scholar. Interestingly enough post-verdict reduction of awards is also smaller where deep-pocket defendants are involved. See: Hensler, Vaiana, Kakalik and Peterson, op. cit. note 7, above, p. 22. The tendency to punish corporate defendants is even greater in cases involving punitive awards. These results have been replicated by two other researchers using a mock juror experiment. As MacCoun, , who reports the work in Getting Inside the Black Box:Toward a Better Understanding of Civil Jury Behaviour (1987), p. 34Google Scholar, puts it: “Hans and Ermann created a brief trial summary in which several workers received permanent lung damage following exposure to a toxic substance during a landscaping job. Students read one of two versions of the case in which the defendant was described as either ‘Mr. Jones’ or ‘the Jones Corporation’. This simple manipulation influenced both liability and damage judgments. The corporation was held liable for significantly more claims than the individual, and awards against the corporation were significantly larger than awards against the individual in each category of damages: hospital bills, and especially ‘pain and suffering’.” (Italics supplied.)

23 See, for example, Claim File Data Analysis: Technical Analysis of Study Results, Insurance Services Office (ISO) Data, Inc. (1988) pp. 39, 45. Where average loss for single defendant claims (involving $25,000 or more) are stated to be $91,466 for government defendants, $90,320 for business defendants and $78,821 for individual defendants.

24 Kelly, and Beyler, , “Large Damage Awards and the Insurance Crisis: Causes, Effects and Cures”, 130 Illinois Bar Journal 140, 153 (1986)Google Scholar.

25 Towards a Jurisprudence of Injury: A Summary of the Report of the A.B.A. 's Special Committee on the Tort Liability System (1986), pp. 2–26.

26 10 Phila. 23 (1983). This statement was quoted as one illustration of the kind of difficulties encountered in asbestos litigation by Judge Weis in the important In Re School Asbestos Litigation 789 F 2d. (1986). A Rand Corporation Study by Hensler, , Felstiner, Selvin and Ebener entitled Asbestos in the Courts (1985) states at p. 42Google Scholar that those problems may in part be due to the difficulties experienced by juries when “dealing with probabilistic [sic] evidence”.

27 The word is used in a neutral way to avoid distinctions between barristers, solicitors, Rechtsanwalt, notaries, etc.

28 It is clear, for example, that there have been fewer asbestos-related suits in this country than there have been in the USA even though, as we shall note below, where legal action was taken it produced remarkably similar awards in both systems. Felstiner, and Dingwall, , Asbestos Litigation in the United Kingdom (1988), especially pp. 17Google Scholaret seq. and Table 12.

29 For more details on all these topics see my German Law of Tort: A Comparative Introduction 2nd ed. (1990). In his study “Das Problem des Kausalzusammenhangs im Privatrecht” reprinted in his Gesammelte Schriften, I, p. 395 et seq., Professor Ernst von Caemmerer reached the conclusion that the plaintiff's claim will rarely if ever fail if adequate causation is the only “corrective” device in the hands of the judge. Our foreseeability test can reach similarly outrageous results. See Meah v. McCreamer (No. 1) [1985] 1 All E.R.367 and(No. 2) [1986] 1 All E.R. 943.

30 Statistisches Jahrbuch 1988, p. 331. The statistics give no details about particular types of negligence litigation under para. 823 I BGB such asfor example the number of medical malpractice claims that reach the courts. Thus I have only been able to find estimates that put the figure of claims satisfied (by Arbitration Boards and courts) at about 3,000. Schreiber, Deutsch and Lilie, , Medizinische Verantwortlichkeit and Verfahren in Medical Responsibility in Western Europe (1985), pp. 226et seq. esp. 230Google Scholar. Most commentators, including the aforementioned authors, draw statistical information from Professor Hans-Leo Weyers's empirical work published in Gutachten A fūr den 52. Deutschen Juristentag. Empfiehet es sich, im Interesse der Patienten and Artzen ergānzende Regelungen fūr das ārztliche Vertrags-(Standes-) and Haftungrecht einzuführen? Verhandlungen des 52. Deutschen Juristentages Munchen 1978 Bd. 1, pp. 37 et seq. This survey, however, though replete with interesting information, invariably refers to claims met by Arbitration Boards and courts. Moreover, it seems to me to suffer from the fact that its information is: (a) about fifteen years old and (b) its estimates derived from inadequate sources.

31 “To the common law lawyer … the German judge will seem to be highly vocal and dominant whereas counsel will appear to act with somewhat subdued zeal:” Kotz, , “The role of the judge in the court-room: the common law and civil law compared” (1987) Tydskrif vir die Suid-Afrikaanse Reg 35Google Scholar. The idea of increased judicial control over the conduct of the action is increasingly appealing to some American and British proceduralists. See: Langbein, , “The German Advantage in Civil Procedure”, U. Chicago L. Rev. 823, 858–862 (1985)Google Scholar; Jolowicz, , “Some Twentieth Century Developments in Anglo-American Civil Procedure”, Studi in onore de Enrico Tullio Liebeman (1979), p. 217Google Scholar.

32 On which see: Stein-Jonas, , Kommentar zur Zivilprozessordnung 20th edn. by Grunsky, , Leipold, , Münzberg, , Schlosser, and Schumann, (1985) § 229Google Scholar. The percentage is, apparently, higher in medical malpractice cases.

33 The Gesetz zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen of April 1st 1977, para. 13.

34 Felstiner, and Dingwall, , Asbestos Litigation in U.K. An Interim Report (1988), p. 17Google Scholar.

35 “Is'nt there a Better Way”, (1982) 68 American Bar Association Journal, 274, p. 275.

36 Weir, “A Strike Against the Law”, 46 Maryland Law Rev. 133 (1986).

37 Daniels, “Jury Verdicts in Medical Malpractice Cases”. Paper delivered to the Annual Meeting of the Law and Society Association on 11 August 1989; idem. “The Shadow of the Law: Jury Decisions in Obstetrics and Gynaecology Cases”, ABF Working Paper No. 8806 (1988) both kindly sent to me by their author.

38 In his article in the Duke Law Journal 1002, 1043 (1987).

39 1 American Medical Association, Special Task Force on Professional Liability, Professional Liability in the '80s, 10 (1984).

40 The Boards are comprised of four members—two coming from the doctors' professional body (Arztekammer) and one representative (usually a lawyer) for the potential plaintiff and defendant. Their majority opinion, on liability but not, apparently, on quantum of damages, if accepted by the parties, will be honoured by the insurance company. Though recourse to court is always possible, the Winterthur A.G. Versicherung of Munich (one of Germany's leading doctors' insurance companies) informed me (through Professor Lorenz) that “the number of cases resolved by this sort of arbitration is considerable”. These boards seem to take anything between 4–9 months to reach a decision. See Eberhardt, , “Zur Praxis der Schlictung in Arzthaftpflichtfällen”, 1986Google ScholarNeue Juristiche Wochenschrift 747–8. Judicial resolution of medical disputes takes significantly longer—mainly because of the difficulties associated with scientific evidence.

41 Press Release to the Frankfurter Allegemeine Zeitung, 4 Feb. 1986, p. 14. Significantly, this prestigious newspaper attributes the increased volume of claims to, inter alia, a change in mentality.

42 Bowles, and Jones, , “A Health Authority's Experience”, New Law Journal 27th 01 1989, p. 119Google Scholar. For Germany see Deutsch, Schreiber and Lilie op. cit. note 30, above. According to the same authors, only 10 per cent. of claims resolved by judicial decision go in favour of plaintiffs. Ibid. at p. 230. Reichenbach, , in “Arzthaflpflicht aus der Sicht des Versicherungsmediziners”, VersR 1981, 807, p. 809Google Scholar gives a similar figure for cases resolved by the courts. The success rate is higher—about 34 per cent.—for claims resolved through the intervention of the conciliation boards.

43 Remarkably, this was openly admitted by Haayen, R. J., Chairman and Chief Executive Officer of the Allstate Insurance Company in a public speech given in Pennsylvania entitled “Balancing Risk and Reward” published by the Insurance Information Institute in 1987 at p. 6Google Scholar.

44 Jones, and Morris, , “Defensive Medicine: myths and facts”, (1989) Journal of the Medical Defence Union (Summer part) 40, p. 42Google Scholar.

45 Ibid., pp. 41, 42.

46 “Medicolegal audit in the West Midlands region: analysis of 100 cases”, (1987) 295 British Medical Journal 1533.

47 Peterson, M. A., A Summary of Research Results: Trends and Patterns in Civil Jury Verdicts, testimony presented to the Sub-Committee on Oversight, Committee on Ways and Means, US House of Representatives on 13 03 1986 (Rand Corporation, 1986), p. 4Google Scholar.

48 Galanter, , “The Day After the Litigation Explosion”, 46 Maryland L. Rev. 3 (1986)Google Scholar 15, note 44 on which this section and Table 16 are based. The National Centre for State Courts, in a Preliminary Examination of Available Civil and Criminal Trend Data in State Courts for 1978, 1981 and 1984 (1986), based on statistics supplied by twenty states, has concluded that “During 1981–4, tort filings increased 7% while population increased 4%. For the entire period 1978–84, total tort filings increased 9%, but the population also increased by 8%”

49 In 1981 there were some 16,000 asbestos claims which, by 1986, had grown to more than 30,000 in state and federal courts. 7,500 Dalcon Shield-related suits in 1981 had grown to more than 325,000 in the Bankruptcy court after A. H. Robins had sought the protection of Chapter 11.

50 By Hensler, Vaiana, Kakalik and Peterson, op. cit. note 7, above, at p. 11. The figures in California are similar. Thus, for the period 1980–4 there were 46 punitive damages awards in personal injuries cases—6 in San Francisco, 15 in Los Angeles, and a further 15 in other metropolitan jurisdictions. Hensler, , Trends in California Tort Liability Litigation (Rand Publication, 1987), p. 11Google Scholar.

51 The Administrative Office of the US Courts, Guide to Judiciary, Policies and Procedures Transmital 64, vol. XI, 1 March 1985 showed median awards in non-asbestos product cases of $70,000 (1980), $100,000 (1981) and $135,000 (1982).

52 Hensler, , Trends in California Tort Liability Litigation (1987), p. 5Google Scholar; Hensler, , Summary of Research Results on Product Liability (1986), p. 4Google Scholar.Professor Daniels, Stephen, in his “Verdicts in Medical Malpractice Cases”, Trial, 05 1989Google Scholar reviews the collected data on all cases that went to a jury in 46 counties in 11 states between 1981–5. Daniels observes that: “Generally speaking, median awards in successful money damages cases [other than medical malpractice) in most places were below $40,000. Only four sites [out of the 46] had medians for the total verdicts over $100,000, one in California and the other three in New York city”.

53 In Djon Pjetri and Zoja Petri v. N.Y. City Health and Hospitals Corporation (20 Trial Lawyers Quarterly (1989) 37 ff.) the Supreme Court of the State of New York followed suit by awarding to the plaintiff who was brain-damaged as a result of an anesthesia error a total of $35,517,578 which was reduced by the Appellate Division on 1 June 1989 to $9.2 million. More precisely the injured plaintiff received $20 million for pain and suffering; $142,000 for past medical expenses; $3 million for future medical care; $1.3 million for future loss of earnings (even though he was 32 years of age and, at the time of the accident was earning as handyman-porter $320 per week). His wife—who, incidentally, left him three years after the accident—was also awarded $3 million (reduced on appeal to $1.5 million) for “loss of services”. Additionally, the jury awarded $6 million (completely set aside on appeal) to Pjetri's mother and sons who were not plaintiffs in the action! The reader can decide how much of the blame (or praise?) for this result can be attributed to the jury and how much to the trial judge.

54 Punitive Damages. Empirical Findings (Rand Corporation, 1987), pp. 21–2. Peterson, in the study quoted in note 47, above, states (p. 2) that throughout the 1960s and 1970s jury awards did not change in the “bulk of lawsuits”. (After adjusting for inflation, the median jury award remained almost constant in both Cook County and San Francisco—less than $20,000 during the decades. The “mega-awards”, on the other hand, seriously distorted averages. Thus, “In San Francisco during the 1960's, only five cases had a value of $1 million (in 1979 dollars)—0.3% of all cases in which plaintiffs received an award. The total amount of money awarded in these million dollar verdicts represented eight per cent, of all money awarded to plaintiffs. During the 1975's, 26 cases (2.3 per cent, of all cases in which plaintiffs received an award) produced awards exceeding $1 million. These cases accounted for 30 per cent, of all money awarded in the first half of the decade and nearly half of all money awarded in the second half of 1970's. [Preliminary results for 1980–1985 indicate that] although million dollar awards occurred in less than four per cent. of all cases won by plaintiffs during this period, they now account for roughly two-thirds of all money awarded to plaintiffs.” (Ibid.at p. 3.)

55 Daniels, op. cit., note 33, above.

56 751 SW 2d 208. Writ of error granted in November 1988.

57 I have derived much information and assistance in this matter from Mr. Graeme F. Garrett of the Edinburgh firm of solicitors of Allan McDougall and who also successfully represented a number of victims in this case.

58 Lotte in Weimar (Penguin edition) p. 330. This metaphor was also used by Denning, Lord in Smith Kline, Ltd. v. Bloch (No. 1) [1983] 1 W.L.R. 730, 733Google Scholar. Jurisdictional aspects of the points discussed in the text, above, are considered by Baade, , “Foreign Oil Disaster Litigation Prospects in the U.S. and the Mid-Atlantic Settlement Formula”, (1989) 7Journal of Energy and Natural Resources LawGoogle Scholar 125.

59 See Helfend v. Southern California Rapid Transit District 465 P. 2d. 61 (1970).

60 Frost v. Porter Leasing Corp., 436 N E 2d. 387, 391.

61 E.g. 300–400,000 DM (approximately £100,000) awarded to a severely disabled, conscious, twenty-six year old plaintiff for loss of amenity and pain and suffering: OLG Nurnberg 13.7 1984, VersR 86, 173 quoted by Hacks, , Ring, , Bohm, , Schmerzensgeldbeträge 13th ed. 1987Google Scholar. Cf: Brightman v. Johnson, The Times, 16 December 1985 (also reported in Kemp and Kemp, , The Quantum of Damages, 4th ed., 1975, Vol. 2, 1–010)Google Scholar: £95,000 for loss of amenity to a conscious plaintiff and Lim Poh Choo v. Camden and Islington Area Health Authority [1980] A.C. 174 (£20,000 for loss of amenity to an unconscious plaintiff. In 1988 values this should be about £40,000).

62 Asbestos Litigation in the U.K.—an Interim Report (1988), p. 16.

63 The Federal Courts. Crisis and Reform (1985) Ch. 11.