Many years ago, when I went up to Canada for an acquaintance’s wedding, I had prepared myself to get an earful about America and Americans. My experiences with Canadians online told me that I was probably going to hear all about how they do everything better than we do. Apparently, Canadians (like most people) are much nicer in person. I did get a fair amount of ribbing, though. Interesting, not about our health care system. Not about our lack of a safety net. Nor how we’re less committed to world peace. Nor the death penalty (which more than one told me they wish Canada had). No doubt many of them thought Americans are crazy about these things, but almost all of them devoted their energy to two topics: American attachment to the American flag, and… more on this and on Canada in a minute.

The last couple times I was in Deseret, dropping off and picking up the dog, I went to the neighborhood of some friends I have out there. The GPS was flawed, and as a result I took a scenic detour trying to find my way back to the highway. Part of the difficulty was navigating my way around a whole bunch of cars that were parked around… what? I could figure it out. Then, finally there was a break between them and I looked down and saw that there was this huge crater thing in the ground. Everyone was sledding to the bottom, walking back to the top, and sledding again. It looked awesome.

All fun things must come to an end, however. At least in New Jersey:

Lawsuits filed by injured sledders, it seems, have struck fear in the hearts of municipal and county government officials, prompting them to simply ban sledding at some of the state’s erstwhile sledding meccas. On today’s webcast, we look at two of them – Galloping Hill Golf Course in Kenilworth and Camp Dawson in Montville Township – and compare two childhood sledding crashes, decades apart, that ended in two very different ways, shedding some light on how we got to a point where some of the best sledding hills in the state sit snow covered and silent. {h/t}

Yeah, that was the other thing. The lawsuits. This was back when being on a jury that awarded bazillions of dollars to somebody got you a spot on the Oprah Winfrey show. The time of the infamous McDonald’s coffee lawsuit that made it forever difficult to get a really hot cup of coffee on the go. They just commented with amazement at how crazy American juries and our civil litigation system.

Meanwhile, the state of Texas is considering going to a loser-pays system, where if you sue someone and lose you have to pay the legal costs of your adversary. For my part, that’s one thing that you can get very, very wrong if you don’t implement the right way and Texas’s governor does not strike me as the type of person that is going to get that right. Be that as it may, I was not remotely surprised to read the third comment:

I’ve commented on it before, but it bears repeating again: to any opponents of this rule, it’s actually NOT crazy. For real. We have it up here in Canada and it seems to work pretty well. {…}

And, as always, nuance is important. There are different schedules of costs that are ordered depending on a variety of factors – merit, complexity, etc. – and they’re left to the discretion of the judge as an extra tool to encourage good behaviour and discourage bad. Waste 10% of a trial with nonsense? Pay the other side’s legal costs for that 10%. Were you a jackass? No costs for you. Cause a delay? Front the other side’s bills for anything caused by the delay. It’s easy and effective. Even people who are suspicious of leaving too much power to judicial discretion don’t seem to care much about it from anything more than a theoretical standpoint.

Sounds pretty Canadian in its straight-forwardness and sensibility, though I have little doubt that we would screw it up somehow. This isn’t the only thing that Canadians do differently. The perils of law school are commented upon here with regularity, and the Canadians have a straight-forwardly, sensible Canadian approach to that, too:

Having already figured out how to provide health care to all of its citizens, Canada seems to have also come up with a system of legal education that doesn’t hobble its young lawyers before they even start practice.

Canada’s key to success seems to be actually regulating its law schools and assuring a basic level of high quality across the board. There are only 20 law schools in Canada, which means that (gasp) not everybody who wants to go can go. Yet despite demand, Canadian law schools also cost less than their American counterparts.

It appears that much like their health care system, not every Canadian gets exactly what they want precisely when they want it. But their magical ability to behave like adults when faced with delayed gratification somehow makes things better for everybody. Chant “U.S.A., U.S.A.,” all the way to debtor’s prison if you like, but clearly the Canadians are doing something right — and maybe we could learn from them here in the States…


Category: Courthouse

About the Author


18 Responses to Post #2527

  1. Kevin says:

    Texas actually tried to adopt a modified version of loser-pays a few years back. The process was supposed to work as follows. If you recover less at trial than was offered in settlement, the difference is deducted from the recovery. For technical reasons that I won’t go into here, the statute has had zero effect on the actual practice of law, but a related problem is that it was designed to address a nonexistent problem. Shrill, uninformed commentary aside, the U.S. system of civil justice is not broken. The problem is not that too many frivolous cases are going to trial. If anything, the problem is that not enough lawsuits are filed and meritorious claims do not reach the courtroom.

    I am not a proponent of a loser-pays system, with one exception. If you are an individual with personal injuries, then I have no problem with your recovering attorney’s fees in addition to damages if you prevail. But you should not be saddled with attorney’s fees if you lose, as that would bar the courthouse door to too many innocent people.

  2. Mike Hunt says:

    Is this post title supposed to be meta, or did you just forget to title it?

  3. Samson says:

    Well, speaking of “missed comments”, don’t miss the one where I said that in spite of my (extreme) conservatism on some issues, there are actually things I prefer about Canada.

    I had prepared myself to get an earful about America and Americans. My experiences with Canadians online told me that I was probably going to hear all about how they do everything better than we do… Interesting, not about our health care system. Not about our lack of a safety net. Nor how we’re less committed to world peace. Nor the death penalty (which more than one told me they wish Canada had).

    This is because most Canadian anti-Americanism has its root in the Canadian inferiority complex and the human psychological tendency to want to believe one’s own group is “better”.

    Good Lord, the lawsuits! My wife worked in a US hospital for a couple of years before I met her. She says of all the things that were different about healthcare there, the focus on avoiding lawsuits was one of the most striking.

  4. trumwill says:

    Kevin, I was under the impression personal injury lawsuits were mostly done on contingency. Am I wrong about that?

    I think that the problems with lawsuits (as with a lot of things) go both ways, with justified plaintiffs not getting what they deserve and some hitting outworldly jackpots and others wasting a lot of time of defendants or getting nuisance money. To some extent, whether one believes that the former is a bigger problem or the latter depends in good part on which side of the table one is like to end up on. Being the husband of a doctor, I try to be aware of my biases. But they’re there.

    As far as loser-pays, my instinct is to be against it for the reasons that you describe. But Canada’s model intrigues me a bit. Mostly because it’s been tried and Canadians seem to be happy with it. That’s one of the main things that makes me less than entirely dismissive of their health care system working here. On the other hand, the counterargument to both is the same: Americans may not be willing to put up with what Canadians are (in terms of being compensated for being wronged or in having the government, as opposed to health insurance companies, ration care).

  5. trumwill says:

    Mike, forgot to title it. The Post # appears by default. For whatever reason, whenever that happens, I usually leave it be.

  6. trumwill says:

    Well, speaking of “missed comments”, don’t miss the one where I said that in spite of my (extreme) conservatism on some issues, there are actually things I prefer about Canada.

    From a selfish perspective, I’m viewing the Canadian health care system more and more generously. I am still skeptical as to how well it would work down here (though, as I said to Kevin, maybe the same is true of lawsuits). At the very least, some of the liberalish/technocratic venom currently aimed at doctors would ease up. And Clancy would be paid about the same. And it would make her job more about treating the patient rather than the hospital needing to maximize billable actions, avoiding lawsuits, and the concomitant paperwork involved with insurance companies.

    Good Lord, the lawsuits! My wife worked in a US hospital for a couple of years before I met her. She says of all the things that were different about healthcare there, the focus on avoiding lawsuits was one of the most striking.

    It’s truly difficult to overstate the toll it takes. Regardless of who is right with regard to how much of a cost it presents to the system, or whether it’s the case that wronged patients too often never get their financial dues, the psychological toll it takes on even conscientious doctors is remarkable.

    If health care were ever truly nationalized, we may be looking at a little or a lot less money, but we would at least be able to take solace in the idea that the government would never let its doctors as liable as independent doctors currently are. Whether that would be a good thing for society as a whole or not, I do not know. But it would definitely be a benefit to us.

  7. Kevin says:

    Will,

    Most personal injury lawsuits are done on a contingency, so you are correct about that. The problem is that a third of the money that should go to the injured plaintiff for things like medical expenses and lost wages gets taken by the attorney. My proposal is to make the damage award go entirely to the plaintiff and an additional award on top of that to compensate his attorney. They do it in civil rights cases, deceptive trade practices, and antitrust cases, but the default is that each side pays its own fees.

    As far as your concern about meritorious claims being uncompensated and frivolous ones getting huge payouts, those things happen very, very rarely. There’s always a winner and loser, so someone’s always going to complain about the judgment. For what it’s worth, those who have studied this issue generally conclude that it is much more likely that meritorious claims will go uncompensated than frivolous ones will be rewarded. In fact, about 15 years ago, there was a big push among insurance companies to arbitrate personal injury cases, thinking that arbitrators would be less likely to award astronomical sums than juries. What they found is that the arbitrators were awarding more than juries, probably because juries can be swayed by appeals of frivolous lawsuits and McDonalds coffee spills, whereas arbitrators, who are usually lawyers, know better.

    I am sympathetic to doctors and their fear of being sued. On the other hand, the most recent report that I’m aware of that was done by the medical community, about ten years ago, concluded that 96,000 people died annually as the result of medical negligence. Whether litigation is the best way of improving the practice of medicine is debatable, but a family who lost their father because of a hospital’s mistake, or a couple forced to raise a special needs child because the nurse screwed up, should receive some compensation.

  8. trumwill says:

    On the other hand, the most recent report that I’m aware of that was done by the medical community, about ten years ago, concluded that 96,000 people died annually as the result of medical negligence.

    The thing is… people make mistakes. All people in all jobs. The damages these mistakes incur are typically more contingent on the nature of the person’s job rather than the egregiousness of the error.

    I’ve made mistakes in the past. Not just probably-couldn’t-have-known-without-hindsight mistakes, but genuine mistakes. Times when I wasn’t focusing or just plum forgot to do something or check something. The difference between this, and when a doctor makes a mistake, is that my errors generally have minimal impact. Doctors, by nature of their work, are more likely than all but a very few to have mistakes with significantly higher impact.

    This makes them liability magnets. This means that a mistake of the nature you or I may make every day incurs damages on a much larger scale. Now, we can argue “because their job is so much more important, they shouldn’t make mistakes!” but that’s simply not reasonable. So in a sense, we’re suggesting that if they have a problem with it, they should choose a line of work where their actions (and therefore their mistakes) matter less. I don’t want people going into safer professions and specialties and dodging obstetrics and ER medicine on the basis that if they end up treating cases where a mistake is more likely going to end up in death or high injury they harbor responsibility that they can dodge by playing it safer.

    There are really limits to the degree you can say “If you make a mistake, and the mistake incurs serious damages, you’re on the hook” as a motivation for the prevention of mistakes. The result is a culture of fear, waiting for that one mistake to have that bad result (this is if they have faith that they won’t get tagged for a non-mistake), stocking up paperwork and test after test so when the hammer does fall, they can minimize their liability. And this is on top of the heartwrenching guilt that the more conscientious among them will feel.

    I don’t begrudge those who have been injured getting their due. I don’t really know the best way of determining how to go about doing this. But even prior to meeting Clancy, I viewed the medical profession as a different brand of tort due to the inherently risky nature of the business as well as the fact that they (unlike, say, a bungee-jumping theme park) are a vital component of society even when they are imperfect.

  9. Maria says:

    It would seem that those countries that are run by precedent-based Anglo-Saxon common law are more vulnerable to litigiousness than those that are run by code law. If that is the case, then a “loser pays” system (which is also in place in Britain, btw) makes sense. I would want to keep the flexibility of common law over code but would want to have some way of controlling the vulnerability to excessive litigiousness.

  10. David Alexander says:

    It would seem that those countries that are run by precedent-based Anglo-Saxon common law are more vulnerable to litigiousness than those that are run by code law.

    I think for sampling purposes, one could do research and see if civil law does have an affect on litigiousness by investigating Canada where civil law is currently in use in one province (that represents roughly 25% of the country), while the rest of the country uses common law. Ultimately, I’ve always wondered if our high health care costs and lack of a robust social welfare system are the source of some of the high lawsuit payouts. In other words, if somebody screws up, who will pay for the cost of one’s treatments, rehabilitation, and lost wages? Everywhere else in the first world, the government ends up subsidizing or providing relatively cheap care and lots of income support, something that’s a bit more difficult to achieve in the United States.

    There are only 20 law schools in Canada, which means that (gasp) not everybody who wants to go can go. Yet despite demand, Canadian law schools also cost less than their American counterparts.

    One must remember that in Canada there is really isn’t an equivalent of a large private college or university. In Canada, the vast majority of schools are independent (not in a “state university” system” except in Québec) but owned by the provincial government. Thus, there’s also a difference between college and university, the former being an extended community college with a three year degree programme and more focus in practical and vocational learning, while a university is equivalent to a large doctoral degree granting institution in the United States. Regardless, since the tuition is highly subsidized by the provincial government, tuition tends to be very low, and one can go to the University of Toronto, Canada’s highest ranked school for $12K per annum. Osgoode Law School, which is IIRC, highly ranked is roughly $18K per year.

    Given that I have family in Canada, there is a part of me that wishes that I had applied to Canadian schools, especially given the favourable exchange rates a decade ago.

  11. trumwill says:

    Ultimately, I’ve always wondered if our high health care costs and lack of a robust social welfare system are the source of some of the high lawsuit payouts.

    I’ve thought of that, too, though we also shell out for pain and suffering as well as punitive damages.

    In Canada, the vast majority of schools are independent (not in a “state university” system” except in Québec) but owned by the provincial government.

    I go back and forth on the “franchising” of universities in this country. Both the extent to which it is a good idea and the extent to which the way we do it takes complete advantage of the possibilities.

  12. Samson says:

    There are really limits to the degree you can say “If you make a mistake, and the mistake incurs serious damages, you’re on the hook” as a motivation for the prevention of mistakes. The result is a culture of fear, waiting for that one mistake to have that bad result (this is if they have faith that they won’t get tagged for a non-mistake), stocking up paperwork and test after test so when the hammer does fall, they can minimize their liability. And this is on top of the heartwrenching guilt that the more conscientious among them will feel.

    Amen to this, Will. (In fact, this will go in my file of quotations to point to periodically over the course of time.)

    David,

    Osgoode Law School, which is IIRC, highly ranked is roughly $18K per year.

    My annual medical school tuition (graduated within the past ten years) was ~$15,000, and my undergrad was ~$7000. I suppose there are advantages to American-style private schools, but from where I sit, $150,000 undergraduate degrees and colleges are really a powerful tool for the perpetuation of the moneyed class system.

  13. omega says:

    “If health care were ever truly nationalized, we may be looking at a little or a lot less money, but we would at least be able to take solace in the idea that the government would never let its doctors as liable as independent doctors currently are.”

    Most physicians in Canada are not directly employed by the government. The government is the single payer, but that’s not the same relationship as a direct employment contract. I doubt the U.S. will ever have a system as nationalized as Canada’s, so I doubt that there would be even as much protection from litigation as exists there.

  14. trumwill says:

    Omega, I’m aware of Canada’s arrangement. I was unclear because I mentally switched gears to the British system without saying so. It’s solace we take in the “worst case scenario” event that something like it did. I don’t know that it’s impossible, though. All they would have to do is make being a doctor financially untenable unless you work for the government itself. You’d still probably see concierge services, but everyone else would work for the government.

  15. trumwill says:

    Amen to this, Will. (In fact, this will go in my file of quotations to point to periodically over the course of time.)

    Thanks!

    My annual medical school tuition (graduated within the past ten years) was ~$15,000, and my undergrad was ~$7000.

    My college education, including R&B (4.5 years), cost $52k. Today it would cost closer to $80. I struggle to think of how spending twice that at a private university – outside the Ivy League – can be justified.

    On the other hand, far be it for me to stick up for the elite private schools, but from what I understand they are pretty generous with their financial support. The sticker price you see is rarely paid.

  16. omega says:

    “All they would have to do is make being a doctor financially untenable unless you work for the government itself. You’d still probably see concierge services, but everyone else would work for the government.”

    Frankly, your scenario is simply too insulting to justify the misery, expense, and opportunity cost they It would be particularly disastrous for younger physicians just out of training who haven’t had a chance to accumulate any savings much less reward for their efforts. I would hope that a significant percentage of physicians would abandon the profession under those circumstances.

    I also consider that scenario unlikely because of the massive expansion of government power over health care that it assumes. Do you think the American people would trust government with that tight a grip over their health care options? Explicit rationing by government will create a lot of committed detractors that will sap the popularity of a government-controlled system. Like you said, the orderly Canadians handle that kind of interference better than U.S. residents.

  17. trumwill says:

    I consider the scenario extremely unlikely. And extremely undesirable. Just not impossible. It wouldn’t happen as one policy, but rather a series of policies each proposed for the unforeseen consequences of the previous policy.

  18. Maria says:

    Government-run medical can be easily manipulated to punish the politically incorrect. It’s already happening in Europe.

Leave a Reply

Your email address will not be published.

If you are interested in subscribing to new post notifications,
please enter your email address on this page.