Outside Counsel

We were in Austria to speak at a conference on "Negligence and Damages in an International Setting". In years past we were regular participants in the conferences put on by L'Association Internationale des Jeunes Avocats, at which we were among the very few Americans present. The ratio was reversed at this event, but there was still an interesting mix. One of the things that seemed notable was that the lawyers who seemed to take the position that US personal injury damages awards are disproportionate were a somewhat younger bunch. We have believed for years that the difference that we see between US damages awards and awards in other systems can be accounted for by virtue of the fact that the special damages sustained by injured individuals are substantially diminished (or non-existent) in other developed countries. The neo-liberal welfare state which is the norm in the Euro Zone spreads risk across society; the US model assigns responsibility for risk on the basis of culpability. Our theory has been that Europe's tort system will trend towards the US model as the European economy shifts away from a welfare model as the consolidation of the various national economies occurs. It's been a process that has been slow in developing, at least in part because the EU has been absorbing a number of countries with large populations and comparatively poorer economies, but I'll stand by this prediction. In any event, our position when we discuss US damages awards with lawyers from other systems is that the reason US awards are bigger than the awards made in other systems is that the damages actually sustained in the US are greater than in Europe. A person injured in the US has no social security safety net to pay for the actual loss of prospective earnings, the actual cost of future medical care ad treatment, the actual cost of the lost household services that the injured person would have contributed to her family. It is surprising to me how many people who do this work think the reason for the difference in damages awards between the US and the rest of the world focus on the fact that we ask juries to make this decision and they do not-- it isn't the juries, it is the evidence that the finders of fact are basing their decisions on.

So that was fun to talk about for a weekend.