The most common reason we have to sue a defendant – person, company, public agency – that causes us injury is we do not have the means -money or insurance – to pay for our damages, and they do. Historically, the public policy for requiring a defendant who causes injury and losses to pay for those losses is grounded in spreading the loss across society through insurance, and keeping us all safer by imposing responsibility and accountability and discouraging carelessness, negligence . We are all more careful when we know we will be held accountable for our conduct.
But having said that, and accepting that there are valid reasons for imposing civil liability for negligence and requiring accountability and responsibility on the part of the careless, why sue? Can’t we resolve claims without resorting to a lawsuit and using all the time and resources that come with litigation and possibly jury trial?
The answers are not easy, or few. Is it greedy personal injury lawyers and plaintiffs? Or evil insurance companies that view every claim as a business loss that needs to be avoided or minimized. It is no doubt sometimes a combination of those things, and more. Juries today are a good gamble for defendants and the insurance companies that make the decisions. The public distrusts lawyers who they see as dishonest and greedy. They distrust injury claims, the people who bring them, and their lawyers because they have heard about “frivolous” and even fraudulent claims – of the “disabled” water skiing – of the minor injury brought upon herself resulting in a jury verdict of millions of dollars (e.g., the McDonald coffee case, which was actually an entirely different story than that, but that is what people heard). While the vast majority of claims and lawyers are worthy and legitimate, the few exceptions have made everyone suspect.
The only leverage an injured person has over the insurance company is the threat of real and substantial justice from a jury trial – a judgment the insurance company has to pay. In California, insurance companies do not have to treat people fairly in claims where the claimant is not the insured, and as a rule they do not. Instead, they look to minimize or avoid the “business loss” the claim represents. Personal injury lawyers are the soldiers in this tug of war between accountability and profit. And their strength lies in their clients’ right to sue.