Do We Have an Adversarial Culture?
The nominal winner is often a real loser -Abraham Lincoln
Litigation, although illustrated as exactly contrary to reality in the media, litigation is not two litigants yelling to a judge or judge and jury in a courtroom. In fact, litigation before a judge or judge and jury is rarely sought by the plaintiff or defendant, nor is it necessary. Litigation is the last resort, short of violence, to resolve a dispute. “The nominal winner is often a real loser”, as Abraham Lincoln once said. Through expenses, fees, and time, litigants dread litigation and so do their clients. Litigation is costly, time-consuming, and looked down on in the legal community.
Americans are quick to blame others for their problems and quick to seek legal redress
Americans are more likely to turn to courts to resolve disputes than other countries. Potential plaintiffs say that they have even suffered an injury and have not filed. Injury perception depends largely on social standards. Such as, it is expected of a woman in the workplace to participate in sexual banter with men. or, is inexpensive fast food fast food a blessing or an invitation to obesity? Potential plaintiffs may also fail to attribute their injury to another party, which is blaming. Another example: someone who suffers injury from a product and failing to recognize that the manufacturer could have made the product safer for reasonably foreseeable uses. The cost of litigation is a prominent deterrent for potential plaintiffs. Three reasons, universal reason, can be found as preventive factors when a potential plaintiff is considering seeking legal resolution for their problems.
- Preserving relationships with the defendants or plaintiffs
- Avoiding publicity
- Avoiding the cost of counsel
The cost of litigation in an adversary system is a perpetual deterrent from pursuing justice through the adversary system. Wealthier individuals are more likely to file a civil suit than lower income individuals for the sole reason of substantial cost of litigation.
In automobile claims, which are more common, three concerns or deterrents of litigation are nonexistent.
- The involved parties are typical without social connections
- Insurance is widespread, so litigation cost is lesser
- The notion or possibility of extended litigation is not likely because claims are easily fielded as a result of the clarity in automobile incidents.
In the uncommon field of medical malpractice, claims are rare. In the study year, it was discovered that 1.5 million patients were victims of medical malpractice. Involving serious and permanent disability for 150,000 people and death for another 150,000. About 400,000 of those injuries were caused by malpractice. The rate of claiming was low, about 1,500 (4%), ultimately filed a claim and about 1,200 (3%) received some compensation.
United States v. Kubrick
Plaintiff Kubrick was admitted to the VA hospital in PA in 1968, for the treatment of an infection in his right femur. After surgery, the infection was cleared. About six weeks subsequent to his surgery at the VA, Kubrick noticed a loss of hearing. Specialists confirmed it was highly possible that the hearing loss could be connected to his surgery at VA. Title 38 U.S.C. s. 351 reads the following. A veteran who suffers “an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment administered by the VA shall be awarded disability benefits. Title 38 U.S.C. s. 351 was later repealed.