« JOTWELL: Walker on Kapeliuk and Klement on contractualized procedure | Main | Data Mining New York Times Wedding Announcements »

Friday, September 06, 2013

What is the civil justice system for?

The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.

Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.

Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally).  At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.

Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.

Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.

Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.

Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.

Posted by Howard Wasserman on September 6, 2013 at 09:55 AM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef019aff393b42970c

Listed below are links to weblogs that reference What is the civil justice system for?:

Comments

"But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system."

Or not; was anything he said wrong?

Posted by: Barry | Sep 6, 2013 4:01:55 PM

The article is aware of the contours of civil litigation so the somewhat patronizing tone of the respose here is a bit off to me. For instance:

"This is why, for all its legal merits and for all its practical benefits to many of the plaintiffs and their families, the settlement of the concussion lawsuit is a national tragedy and a moral failure."

The article doesn't think the NFL did something legally wrong as such by settling here. That there was no practical benefit. The comparison to the inspectors is not just a matter of legality, but hiding key information.

This to me is a problematic aspect of some settlements -- buying silence. I realize the imperfect balance, that is the "point," what it is "for," but still, I think it problematic that the state is being used at times to silence people, to withhold information tied to wrongdoing. Yes, this saves time and effort, and sometimes the party in question might not have the means (often money) to press the company or other party hard enough to force the issue without the settlement that included buying silence. But, silence is still not always golden.

It is unclear to me that the article misunderstands the nature of civil litigation, including certain restraints (cited above) that it feels would not be in a "just world."

Posted by: Joe | Sep 7, 2013 12:01:04 PM

You might be interested in my academic article that lays out the public health argument in detail regarding the NFL concussion litigation.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293117

(The date is wrong; the paper came out in June 2013).

In addition, I entirely disagree that the NFL would have succeeded in keeping most of the discovery information sealed. It is much harder to do this in mass tort litigation than most people think -- just ask the tobacco companies.

I and others firmly believe the NFL could not legitimately risk discovery.

Posted by: Daniel S. Goldberg | Sep 7, 2013 9:58:36 PM

Post a comment