Friday, June 13, 2008

A New Kind of Justice

For the last ten+ years I've designed online games, including A Tale in the Desert. Much of what I do involves thinking of every way that players can metagame (some would say "cheat") the various systems that comprise the game.

People metagame all sorts of things in real-life too, including (especially in the United States) the civil court system. Nuisance lawsuits, lawsuit threats, and claims of damages far in excess of actual damages in order to scare unsophisticated defendants all drain the lifeblood from our economy.

I've applied what I've learned to creating a new set of rules for civil court which solve many of these problems. Such rules should be like good computer code: short and elegant. I've described these rules to a number of people including lawyers, and none have identified any facets of our current system that would be made worse by my rules, and the rules seem to solve several of the above problems. Here's my system:

1. When bringing a lawsuit, the plaintiff names a defendant and an amount of damages that he claims to have suffered. The act of bringing the lawsuit guarantees that that amount of money will change hands. Whether it changes from defendant to plaintiff or plaintiff to defendant is up to the jury. Once a lawsuit is brought, there is no going back.
2. A jury hears from the plaintiff and defendant, as they do now. They decide whether the plaintiff is claiming a reasonable amount of net damages. The word reasonable can be further defined by law as "no more than 125% of net damages," or other simple definition.
3. If the jury finds that the plaintiff is, for example, 20% responsible for the loss, and finds that gross damages are $1000, then they would compute the net damages at 100%-20%-20% = 60%, or $600. Note that if the jury finds that the plaintiff and defendant are equally culpable, then net damages are $0, and any claimed damages exceed this.
4. If claimed damages are reasonable in light of net damages, then the amount of money listed in the lawsuit will change hands from the defendant to the plaintiff. Otherwise, that amount of money will change hands from the plaintiff to the defendant.

People's first reaction to this system is often "this would make it impossible for the little guy to sue the big corporation." (Because the little guy has no way of paying, should he lose.) This is where the lawyers come in! Lawyers would now act as a sort of cross between their current role, and as insurance companies. When a lawyer takes a case, they are making a pledge to pay the other side, should their client lose. Of course lawyers and clients can make any arrangement they want in terms of splitting winnings or losses, but ultimately the lawyer is on the hook for a loss.

This system does not solve every problem with civil courts. For instance, a large company could still sue an individual for a nuisance amount, say $1000. And they could then proceed with a discovery process that costs hundreds of thousands of dollars to comply with. This is no different than at present. But that process itself could be grounds for a lawsuit.