Home

Climate Change Project

Table of Contents

Courses

Search


<< >> Up Title Contents

The Litigation Bias

These problems with the selection of the cases and facts that give rise to legal opinions make it difficult to evaluate legal problems prospectively. There is often little congruence between real-world problems and the law as found in legal opinions. For example, most legal opinions discussing the duty of a physician to obtain the patient's informed consent also involve proved malpractice. The opinions do not discuss the malpractice because it does not involve any new issues. An attorney reading the opinion may not properly appreciate the importance of the underlying malpractice and attach too much significance to the technical requirement for informed consent.

Taken in the long view, the common law tradition has been critical to the development of our democratic traditions. In late-twentieth-century America, reliance on the common law tradition of deriving law from judicial opinions has given false direction to legal teaching and practice. The fundamental problem with deriving legal rules from published legal opinions is that most law practice does not involve litigation. Focusing on litigation ignores the role of lawyer as negotiator, conciliator, and counselor, and it distorts the attorney's perspective on the management of nonadversary situations: "From the point of view of the parties to a lawsuit, the costs are in vain; almost every litigated case is a mistake".[3] It ignores the issue of prospective planning to prevent legal problems.

[3]Fisher R: He who pays the piper. Harvard Business Review 1985 Mar-April:150.


<< >> Up Title Contents

Law and the Physician Homepage
Copyright 1993 - NOT UPDATED

The Law, Science & Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation

See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster