The Beam in Thine Eye: Judicial Attitudes Toward 'Early
Offer' Tort Reform

University of Illinois Law Review, Vol. 1997, No. 2, 1997

Posted: 18 Nov 1998  

Jeffrey O'Connell

University of Virginia School of Law

Ralph Muoio

Caplin and Drysdale

Date Written: August 1997

Abstract

Professor O'Connell has recently drafted a statute that would allow a defendant in a personal injury tort suit to make an early settlement offer to pay an injured's economic damages. Under his proposal, a defendant need not make such an offer and if no offer is made, normal common-law tort principles apply. However, if an offer is made and a claimant does not accept the offer, the claimant will face a higher burden of proof at trial and the defendant will be held to a lower standard of care. In this article, originally delivered as a lecture at the University of Illinois College of Law, Professor O'Connell and Mr. Muoio respond to one of the possible stumbling blocks this proposal faces: the possible resistance of the judiciary to such reform. They begin their response by illustrating the irony of such a stance given the broad immunity afforded the judiciary. They then contrast this immunity with the expansion of liability for other professionals largely propelled by that same judiciary. Finally, the authors conclude that, given the unfairness often involved in second-guessing professional decisions, the early offer approach is a better solutions in dealing with tort liability. The judiciary therefore should be receptive to it.

Suggested Citation

O'Connell, Jeffrey and Muoio, Ralph, The Beam in Thine Eye: Judicial Attitudes Toward 'Early Offer' Tort Reform (August 1997). University of Illinois Law Review, Vol. 1997, No. 2, 1997. Available at SSRN: https://ssrn.com/abstract=139971

Jeffrey O'Connell (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
804-924-7809 (Phone)
804-924-7536 (Fax)

Ralph Muoio

Caplin and Drysdale

Suite 1100, One Thomas Circle, NW
Washington, DC 20005
United States

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