Introduction to the Law of Torts
Editorial Reviews
Book Description
Using a light, conversational style-injected with humor, ingenuity and insight-this book makes the complex law of torts understandable for readers at any level. Throughout, case excerpts are used as the basis for discovering the kinds of evidence/facts that parties in a case have used to establish their points. The excerpts give readers an idea of what kinds of evidence to put on, and show them the beginnings of the process of evaluation and comparison that are at the core of stare decisis. Torts, Contracts, and Crimes: What They Are and What They Aren't. Trespass, Assault, Battery, and Conversion. Ordinary Care and Negligence. Establishing the Standard of Care in the Courtroom. Causation in the Law of Torts. Defenses to Claims of Negligence. The Special Duties of Landowners. Compensatory Damages in Tort Cases. Aggravated Negligence, Fault, and Punitive Damages. Tort Liability for Defective Products. The Law of Defamation, Libel, and Slander. Torts Involving Privacy and Seclusion. Malicious Prosecution, Abuse of Process, and False Arrest. Fraud, Misrepresentation, and Tortious Interference with Contracts. The Developing Law of Toxic Torts. The Role of Insurance in the Law of Toxic Torts.
From the Inside Flap
THE STUDY OF LAW AND THIS BOOK
In this book and others that you may read during your education, you will be the victim of a gentle deception. It is easy to assume that the purpose of reading case excerpts is to glean the legal principles they present and understand the thinking that goes into concepts like negligence, strict liability, defamation, and many others. Your instructors will encourage this by giving you cases to brief in which you will place portions of case holdings into relatively neat pigeonholes.
The problem with this approach is that it overlooks the most important part of a case: the facts. All case law is fact driven. As Justice Oliver Wendell Holmes remarked, "The life of the law has not been logic: it has been experience." In other words, legal principle rarely emerges from abstract study. It generally arises when two people are having a dispute, and they seek a neutral arbiter to resolve it. The law has the same roots as a parent resolving a dispute between two children - the need for peace among disputants and for predictable rules to resolve disputes.
Admittedly, this is oversimplification, but it still catches a great deal of the common law legal process. Think about it. Someone files a lawsuit in which one alleges that another (or others) has done wrong. That person asks the court for some kind of remedy. The defendants can file a response asserting their defenses. Ultimately, with or without discovery or other proceedings, the parties present their evidence to the court or jury. Based upon what is presented (or not presented) in the trial, the judge fashions jury instructions that embody the law applicable to the situation existing between the parties.
What if there is no jury instruction that precisely meets the needs of a particular case? Then the court creates one. The parties often have a voice in this process, and some intensely practical judges allow the parties to put forward the instructions they want, reasoning that the parties will have to defend the jury charge on appeal. At some point, though, the judge gives instructions to the jury on the law. It is this moment - essentially the judge's reaction to the factual evidence in the case and his or her decision as to what rules should apply - that embodies more than any other the process by which the law evolves.
If the trial judge gives a new instruction, one that goes beyond or 1n a different direction from prior law, the change in law is immediate. An appellate court may choose not to permit the change. But in doing so, the appellate court generally must consider what the trial court did and why it did it. Lawyers and judges, being who they are, cannot consider anything without commenting about it, and comments lead to opinions, which you get to read!
Conversely, if the judge refuses a party's request for an instruction or theory, that party can ask the appellate court to require the trial judge to give the requested instruction. Again, this requires the appellate court to consider the merits of permitting the change, and in doing so, it still must consider what the trial court did and why it did it. This process goes on thousands of times every day, and it is the vehicle by which our common law expands. Still, it does not quite explain why you should focus on facts.
The importance of the facts in each case becomes clearer when we add another goal: predictability. People benefit by knowing in advance the likely outcome of doing or not doing something. Just as children learn not to do something because they see other kids go to "time out" or be spanked, grown-ups and businesses can look at what has happened to others with similar problems and predict what will happen if they try it.
Where do they look? To court decisions that have the same or similar facts as their own situation, of course.
The common law encourages this reflection and comparison through a principle known as stare decisis. In Latin, it literally means "to stand by things decided," but idiomatically it can be translated as, "Copy!" Courts applying principles of stare decisis do so to honor and follow their older decisions. When presented with disputes that are substantively similar to a matter already decided, courts honoring stare decisis use the same substantive legal principles they used in deciding the prior case. What is the glue that binds earlier decisions to current case law? It is the facts of the case, because they form the basis for the dispute's substance.
That is why you should always focus on the facts as a primary basis for your study of legal issues. It all boils down to this process:
My case involves a particular kind of factual dispute or
claim. When the court last dealt with this kind of
dispute, it applied the following rules: fill in this space
with your proposed court's rules. As a result, fill in
the blank happened. This is why the court said it was
doing what it did: fill in the blank with the prior
court's basis/justification/reasoning. Because courts act
consistently, fill in the blank is likely to happen here.
This is why we will win.
But now comes the fun part and the reason legal professionals always will have work: disputes are not always identical. Whichever side of a dispute we are on, our job is to take some aspect of it and emphasize (or de-emphasize) it so that a court will apply rules or decisions favorable to us. Sometimes this is hard. When a court has used the same rules to decide rear-end collision cases 1,000 times, you can comfortably predict that your chance of getting a different principle applied is very small unless you have a titanic difference between your case and prior cases to show the judge. On the other hand, your chances may be better in new areas of law or in situations where existing rules have been criticized by courts in other states or legal scholars. Your chances might also improve because of changing technology or shifts in society's stance on a particular issue (such as slavery).
Learning how to turn small differences into big ones, or vice versa, is a key to success as a legal professional. Sometimes a legal principle will be ripe for change, but much more often, you and the others on your team will rely upon differences in facts to make a more favorable case for your client.
There are two ways to go about developing facts. One is simply td collect more than the other parties involved in the case by discovery and by investigation. The other is to appreciate the importance of what you have better than your opponents.
Hands-on investigation is a crucial part of the legal business, but sadly, it is one that many young professionals view as less and less important. Even with all the modern investigatory aids, it remains essential that someone go and see. Here is an example. In a toxic tort case, suppose that a plaintiff's expert opines that poisonous vapors came into residential units through separate air conditioners located in each unit. The only problem was that the units did not have separate air conditioners; each building had a large chilled water unit. End of theory. End of expert. OOPS....
Investigation means go look and see. Interview. Dig. Find. This is not to minimize the importance of the discovery process. Quite the contrary. All the same, those who stay in their offices hoping that the facts will come to them are likely to be disappointed.
In an information age, superior appreciation and bigger piles should not be confused. In a recent mass toxic tort case, the parties marked well over 10, 000 exhibits. Some of these were documents that experts needed as foundation for their testimony, but most were not. Of the 10,000, the parties used about 300 exhibits at trial. Of the 300, as demonstrated by the way the parties used them, only 40 were truly important. Big stacks of exhibits do not necessarily mean big evidence.
Many legal professionals tout the use of sophisticated database programs as a remedy for this. It must be said that developments in scanning and search engine technology bring closer the day when everything can be put in one database and searched word by word. But regardless of how sophisticated our computers are, someone still has to create the database and then read and appreciate the significance of what is there. In some cases, knowing who did or did not receive a key piece of paper can be vital. Sometimes it is important to understand how a particular medical test is done. Recreating an accident by animation or even with toy cars may be important. In one case, for instance, an attorney who was also an architect illustrated the stresses on a building's roof by making a model of the crucial joint from cardboard and a toilet paper tube. To paraphrase John Le Carre, the facts are the body of a case. You try on theories like suits of clothes.
Why, then, do we study the legal cases? Knowing what kinds of evidence must be presented in a courtroom to make a case that a jury can hear helps you know what facts to look for. If we say - and we will - that the plaintiff must prove the existence of a duty, this means that the plaintiff's team must come up with facts that would allow such a relationship to be created. Doctor-patient, attorney-client, architect-customer, and the driver on a public street are all examples of a relationship. We prove them by adducing facts showing existence of the relationship:
Q: When did you first see Dr. Smith?
A: August 7.
Q: Why did you go to see Dr. Smith?
A: I was having pains in my chest.
Q: Did Dr. Smith treat you?
A: Yes. He gave me a stress test, and some x-rays and ....
Here we leave our humble example, because the relationship has been established. On August 7, Dr. Smith treated our witness, and a doctor-patient relationship came into being.
This kind of thing can happen with a document, as in this example:
Q: Did you ever ask the Smith law firm to represent you?
A: I did.
Q: Would you please identify Exhibit 3 for us?
A: It's my copy of my retainer agreement with the Smith law firm.
Q: What's the date on that document?
A: August 7.
Q: Is your signature on it?
A: Right there.
Q: Does another person's signature appear on that document?
A: Yes. Mr. Smith's name is right there.
Q: Your honor, Plaintiff offers Exhibit 3 ....
Here the plaintiff establishes the duty by introducing the written contract between lawyer and client. Although the issues can be mind-bogglingly complex, you can get the general idea from these short examples. A Note About the Case Excerpts
As you read the case excerpts in this book, think about the kinds of evidence the parties in the case used to establish their points. Were they effective? Were they creative? Were they persuasive? Did they work? What did the court want? We use excerpts of cases to give you an idea of what kinds of evidence to put on, and to show you the beginnings of this process of evaluation and comparison that are at the core of stare decisis. So, that is what this is all about.
In choosing excerpts for this book, we tried to select cases that illustrate majority rules and developing trends in the law. However, the state in which you live may not apply the majority rule. Your state may have a statute that supersedes the common law. At times, you may find that your state has not yet taken a position on a certain point of law. Therefore, check your own state law carefully to determine your state's law on the areas that we discuss in this book.
With the exception of important historical cases, we have tried to select decisions that are as recent as possible on a given point and from as many states as possible in the hope that this will provide the student with the most current trends in legal thinking. We certainly have not intended to slight any particular jurisdiction and its courts by omission of cases.
Introduction to the Law of Torts
Introduction to the Law of Torts,Thomas A. Alleman,Frances B. Whiteside,Prentice Hall,0929563549,General,Law,Legal Reference / Law Profession,Law / General
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