American litigiousness is a pretty obvious consequence of American tort law. The system provides very strong incentives to sue whenever possible, since damages are awarded based on the defendant's ability to pay rather than the amount of damage caused. That is, successfully suing a rich defendant can net you very large amounts of money. With these incentives, *not* to sue would be stupid.
Most countries aren't like this. Instead, you're awarded damages that will cover whatever loss you suffered, plus possible intangibles like pain and suffering; if additionally the defendant is determined to have committed a crime, that's a separate criminal case with separate penalties. The incentives are different, consequently there are fewer lawsuits.
I.e., if you want America to become less litigious, appealing to the professional ethics of lawyers won't help. Changing the incentives will. That's the free market in action again...
That's not exactly accurate. There actual and punitive damages. Actual damages are like what you are talking about. Punitive damages are designed to punish the person enough to make them not consider not doing it again. While in practice it can be problematic, in theory it makes sense. As an example:
If I chose to drive with no insurance and kill or significantly impair someone in an accident I caused, the impact of the lawsuit if only actual damages could be awarded is very different if I am rich or poor:
If I am poor, the actual damages alone are potentially enough to make sure I never drive without insurance again and hopefully am a better driver.
If I am rich, the actual damages may constitute a very small portion of my wealth, and hence it isn't going to affect me or change my behavior (outside of any moral revelations I might have).
That is where punitive damages level the playing field.
The problem, IMO, is that the punitive damages go to the victim. IMO, they victim should have the choice of where to donate that money, but should not be able to keep it. We would have less litigation, because the potential for jackpot rulings is gone, but still retain the inhibition imposed by the punitive damages.
Additionally, there should be a cap on the amount that attorney's can collect. Not necessarily dollar wise, but percentage wise. In just about every case, less than 50% of the awarded damages go to the victim. The attorney is reimbursed for expenses (which is fine, so long as they are not over inflated, which from my experience they often are) and then gets 50% of the award as well. And not 50% of what is left after expenses, 50% of the GROSS amount.
Attorneys will go on and on about how they sink so much time and effort into cases with the potential that they get nothing back, so the deserve that. I completely disagree. Yes, they should be well compensated, but their take home should never be more than the victims.
Take out the potential for the jackpot awards and reduce the incentive for attorney's to file any lawsuit they can, and we'd be a long way to having a reasonable judicial system, and an efficient one as it would unclog a lot of the courts.
Unfortunately you'd need lawyers to push through any decent tort reform and they're always against it.
Mind you, Australia managed it.
So did Texas. It's been a mixed bag return, but I still think it was the right move.
