Humanity in Tort: Does Personality Affect Personal Injury Litigation?

(2018) 71 Current Legal Problems

32 Pages Posted: 24 Jan 2018 Last revised: 27 Apr 2018

Richard Lewis

Cardiff University

Date Written: January 21, 2018

Abstract

This article examines whether the character of people involved in personal injury claims affects their outcome irrespective of the legal rules. For example, does the personality or background of the litigants or their lawyers influence whether an action succeeds and how much damages are then paid?

A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies typical claimants and the injuries from which they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims. By contrast, in more serious injury cases character and personality are more likely to make a difference. These findings are suggested by the author’s empirical study of the views of lawyers on the operation of the claims system: practitioners who have been interviewed are given voice here.

The article challenges traditional perspectives of tort where it is often implicit that claims are resolved only in court on the basis of textbook rules on liability and damages. There has been a failure to take account of other factors which may influence both the settlement of claims and the few cases that go to trial. In this wider context the article forms part of a literature revealing that the operation of the tort system in practice differs markedly from that in theory. It calls into question those philosophies of tort liability which fail to consider how claims are actually determined.

Keywords: Tort, Personal Injury, Litigation, Socio-legal, Empirical, Negotiation, Bargaining, Compensation Culture, Legal Profession, Liability Insurance, Settlement Mills, Accident Statistics

Suggested Citation

Lewis, Richard, Humanity in Tort: Does Personality Affect Personal Injury Litigation? (January 21, 2018). (2018) 71 Current Legal Problems. Available at SSRN: https://ssrn.com/abstract=3106189 or http://dx.doi.org/10.2139/ssrn.3106189

Richard Lewis (Contact Author)

Cardiff University ( email )

Cardiff Law School
Museum Avenue
Cardiff, Wales CF10 3AX
United Kingdom
+44(0)2920874341 (Phone)

HOME PAGE: http://www.cardiff.ac.uk/people/view/478882-lewis-richard

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