• A law professor’s take: Civil justice system overview Friday, September 18, 2009

    By John T. Nockleby


    The civil justice system is the forum in which people who have claims against other persons or entities may obtain relief in the form of damages or injunction.  The types of claims handled by the civil justice system include breach of contract, civil rights, as well as torts.  The “law” referred to is typically developed state-by-state, though in recent years the federal government has played a more significant role. 

    • State Law Versus Federal Law

    Most rules of law governing enforcement of contracts, protection of property and personal injury is state law.  This is a central feature of our constitutional structure—many functions of government were decentralized and the powers of the federal government were limited. If Congress enacts legislation that changes the tort law of states, ordinarily it must justify the enactment on grounds that the problem being regulated affects interstate commerce. 

    However, because tort law (as well as property law and contract law) is developed on a state-by-state basis, on occasion any generalization about the status of current “law” needs to be qualified by saying that not all states necessarily have the same  rules of law.  Most state courts are sensitive to this issue, however, and make efforts to develop rules that parallel those  developed in other jurisdictions.

    • State Courts Versus Federal Courts

    Most civil cases, including tort cases, are tried in state courts. This is in part a function of the fact that tort law is largely a matter of state law.  However, for cases in which parties hail from different states and the damages are large, federal courts may hear the state law claims under what is known as “diversity” jurisdiction.  Even so, state courts handle roughly 98% of all civil litigation, and federal courts about 2%.[1]

    • Common Law (Judge-Made Law) Versus Statutory Law

    All but one of the 50 states (Louisiana) has a system of “common law” adjudication by which the state develops its tort law.  The common law is a body of law made by judges over several centuries. The method of judicial law making that characterizes common law systems grew out of the English system of judging during the medieval period and was exported to lands colonized by England.  Thus, the practice of common law adjudication within the 49 states has a pedigree that antedates the  adoption of the U.S. Constitution.

    Common law systems should be contrasted with the civil law approach used in many European countries.  A civil law system operates under codes of law that are usually developed by a legislative body.  In a civil law system, the judicial role entails applying and interpreting the statutes adopted by the legislative body.

    An important feature of common law systems, and one that is frequently confusing to nonlawyers and visitors from civil law systems, is that the rules of law are developed in the process of adjudication, and may be announced by judges in the same cases to which they first apply.  For example, when a controversy arises under tort law, the dispute is brought before a judge or panel of judges.  The judge will then decide which party prevails and why, and will announce her decision in an opinion.  Among other matters, the opinion contains a statement of the governing law which was developed by the judges either in that case, or in an earlier case deemed sufficiently similar in character to be considered controlling.

    The American version of common law adjudication is also based on a system of “stare decisis”–the idea that judges should respect and follow precedent.  Stare decisis means that (1) judges are required to follow rules developed by higher courts in their jurisdiction; and (2) judges will ordinarily consider themselves bound by previous decisions of the same court in which they sit (including decisions made hundreds of years ago), unless there is a good reason for changing the rules previously developed.  Accordingly, the doctrine of stare decisis imposes upon judges the obligation to decide future cases in the same way as past cases.  In other words, common law judges are bound to decide like cases alike.  This does not mean that judges can’t or don’t change the common law rules;  indeed, common law rules in different areas of law go through periodic upheavals.

    If a state’s legislature decides to change the state’s common law, it is free to do so provided the enactment does not violate     the state’s or the U.S. Constitution.  Today, many state legislatures are actively involved in forming their state’s rules of law governing tort, property and contract.

    • Judicial Role Versus Jury Role

    A trial judge has the responsibility to decide what law governs the case under consideration.  The judge is also bound to regulate the flow of information the jury hears.  In general, if a party’s evidence does not meet at least a minimum standard, the judge is required to dismiss the case.  Also, there are many stages before and during trial at which a judge may dismiss a case on a defendant’s motion.  In other words, if a case is frivolous, or makes claims that cannot be established, a trial judge is duty bound to dismiss the case before trial.

    Assuming that a plaintiff’s credible evidence satisfies the minimum standard, the case is permitted to proceed to trial.  The jury hears the evidence, and is then instructed by the jury as to what is the law.  The members of the jury are bound by their oath to follow the law as laid down by the trial judge.  The general idea of the relationship between the trial judge and the jury is this:  the judge determines the law and assesses whether the plaintiff’s evidence meets the minimum threshold necessary.  Then, the jury decides based on the believable facts, in light of the law, which party should prevail.  The plaintiff ordinarily has the burden of proof as to all issues necessary to establish her case. About half of tort verdicts are decided in favor of the plaintiff and about half in favor of the defendant. 

    After trial, each party is free to file post-trial motions. Once again, a losing party may challenge the outcome or move for a new trial. The losing party is also free to appeal.  If a jury verdict goes against a plaintiff, it is extremely hard for that plaintiff to prevail on appeal unless the trial judge committed a serious error.  In contrast, a losing defendant may argue on appeal (once again) that the plaintiff’s evidence was insufficient to meet the legal standard, that the trial judge made a serious error, or that the jury’s damage award was out of line.  Either the appellate or the trial judge is free to review the jury’s award, and can either reject the decision for the plaintiff or revise (downward) the amount awarded.  For example, in cases in which juries award punitive damages, trial and appellate courts frequently reduce the amounts awarded.  The plaintiff is usually given a choice:  accept the reduced award or face another trial.  Most plaintiff’s accept the reduced award.

    • Substantive Rules of Law Versus Procedural Rules of Law.

    Although most tort reform efforts have been focused on changing the substantive rules of tort law, there are also other efforts afoot to change certain procedural rules.  Substantive rules refer to things like the standard of proof required of medical malpractice plaintiffs, or the requirements that must be satisfied to demonstrate that a product is defective.  “Procedural” rules, in contrast, involve the organization of the trial and things like the types and timing of motions that can be filed, the mechanisms for securing evidence and taking pre-trial depositions, and the like.  One major procedural mechanism that has come under increasing challenge is the class action lawsuit.

    A class action is designed to permit multiple persons with similar claims to file a single lawsuit rather than, say, 1,000.  It is obviously more efficient for everyone, including the court, to adjudicate the same question once rather than 1,000 times.  Employing this device, however, creates many tensions.  To choose just one common dilemma: it is often inefficient and impractical to notify everyone who is a member of a large class of all their rights and of all the various decisions that must be made during the course of litigation.  If ten thousand people have each lost $100 from the tortious behavior of a single defendant, the bringing of a suit is warranted, but the expense of repeated correspondence would eat up whatever damages might be obtained.


    Here are some examples of common torts:

    • Defamation
    • Products liability
    • Fraud
    • Unfair competition
    • Product disparagement
    • Negligence
    • Nuisance
    • Trespass to land
    • Trespass to chattels (personal property)
    • Strict liability for abnormally dangerous activities
    • Interference with another’s contract
    • Invasion of privacy
    • Battery
    • Assault
    • Intentional infliction of emotional distress
    • Wrongful death

    Note that not all torts are of the “personal injury” variety.  Indeed, many torts lawsuits are filed by businesses against other businesses and involve claims of unfair dealing, fraud, interference with business relationships, unfair competition, and so forth. When PeopleSoft objected to Oracle’s takeover bid in early 1994, it filed a $2 billion lawsuit against Oracle in California state court alleging unfair competition. State judicial centers have observed that contract litigation and business litigation (businesses suing other businesses) has been on the rise.

    Other tort suits are filed by businesses against individuals who, it is argued, are interfering with some important aspect of the business.  For example, when Intel objected to a former employee sending email to current employees, it sued him for “trespass to chattels”—its computer system.  And when Food Lion objected to the ABC’s PrimeTime Live investigative report over its meat handling practices, it sued ABC and its employees for deceit, fraud, trespass, and breach of fiduciary duty.


    (John T. Nockleby is a Professor of Law at Loyola Law School and also directs Loyola’s Civil Justice Program.  The Civil Justice Program was founded in January 2005 to focus research and public attention on the civil justice system in the United States.

    [1] In 1989, for example, the federal courts saw 233,529 cases filed compared to 17,321,125 in the state courts for a 1.3% to 98.7% split. See NATIONAL CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS: ANNUAL REPORT 1989, at 7, 21 (1991). For 1985, the figures were 273,670 federal versus 14,357,757 state.   See NATIONAL CTR. FOR STATE COURTS, STATE COURT CASELOAD STATISTICS: ANNUAL REPORT 1985, at 213 (1987).

  • Tags: ;
    Category: Civil Justice System;