TORT CASES IN JUDICIAL AND ALTERNATIVE DISPUTE RESOLUTION SYSTEMS

• NCJ Number: 64688
• Author(s): R E KEETON
• Date Published: 1979
• Length: 99 pages
• Contract Number(s): JADAG-79-M-1948
• Sponsoring Agency: US Dept of Justice
• Sale Source: National Institute of Justice/
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

JUDICIAL SYSTEMS FOR RESOLVING TORT DISPUTES ARE COMPARED WITH ALTERNATIVE TORT DISPUTE RESOLUTION SYSTEMS.

Abstract

OVER THREE-QUARTERS OF TORT CASES ARE CLAIMS FOR COMPENSATION FOR ACCIDENTAL INJURY TO PERSONS OR PROPERTY, USUALLY BASED ON NEGLIGENCE. ANGLO-AMERICAN RULES AND PRACTICES ARE BASED ON THREE PRINCIPLES: FAULT, STRICT ACCOUNTABILITY, AND WELFARE. CLAIMS ARE COMMONLY PRESENTED IN BIPOLAR FORM, INVOLVING ONE CLAIMANT AND ONE DEFENDANT. DISPUTES USUALLY CONCERN BOTH FACTS AND EVALUATIONS AND RELATE TO PAST ACTIONS. CRITERIA FOR EVALUATING THE DISPUTE RESOLUTION SYSTEMS' EFFECTIVENESS INCLUDE PROCEDURAL EFFECTIVENESS AND NONPROCEDURAL CRITERIA. JURY TRIALS OFFER PROCEDURAL BENEFITS BUT ARE OFTEN DELAYED AND COSTLY. THEY ARE THEREFORE LIKELY TO BECOME INCREASINGLY LESS ACCEPTABLE AS A TORT DISPUTE RESOLUTION SYSTEM. NONJURY TRIALS ARE MORE TIMELY, ACCESSIBLE, AND AFFORDABLE THAN JURY TRIALS, BUT MAY NOT BE AS IMPARTIAL, ACCURATE, OR CONSISTENT. NONPROCEDURAL CRITERIA FOR EVALUATION INCLUDE SENSITIVITY TO ALL INTERESTS, CONSISTENCY WITH DECLARED PRINCIPLES, EFFECT ON CONSISTENCY WITH DECLARED PRINCIPLES, EFFECT ON CONTINUING RELATIONSHIPS, THE RELATIONSHIPS BETWEEN SUBSTANTIVE LAW STANDARDS AND BURDENS OF DISPUTE RESOLUTION, AND ADAPTABILITY TO DIFFERENT KINDS OF DISPUTES. ALTERNATIVES TO JUDICIAL DISPUTE RESOLUTION SYSTEMS INCLUDE (1) STRUCTURING INCENTIVES FOR SETTLEMENT THROUGH THE USE OF PRETRIAL CONFERENCES INITIATED BY COURTS AND BY REQUIRING ARBITRATION AS A PREREQUISITE TO JURY TRIALS AND (2) A PROGRAM OF INSTITUTIONALLY SPONSORED SETTLEMENT PROCEDURES WITH INCENTIVES FOR MAKING GENUINE BEST OFFERS EARLY. ANALYSIS OF THE POSSIBLE SYSTEMS SUGGESTS THAT SYSTEMS CURRENTLY IN USE SHOULD BE ASSESSED. THE MOST DESIRABLE SYSTEM IS THE OPTIONAL LOW-COST DISPUTE RESOLUTION SYSTEM; SECOND WOULD BE PROCEDURES MANDATED AS CONDITIONS BUT NOT SUBSTITUTES FOR JURY TRIALS. LEAST DESIRABLE WOULD BE MANDATORY SUBSTITUTES FOR JURY TRIALS. EXTENSIVE FOOTNOTES ARE INCLUDED.