REVIEWS
| Published date | 01 September 1989 |
| Date | 01 September 1989 |
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02625.x |
REVIEWS
THE AMERICAN
TORT
PROCESS.
By
JOHN
G.
FLEMING
[Clarendon
Press,
Oxford:
1988.271
pp.,
f27.50
hb]
EVERY day, it seems, another disaster is splashed across the headlines. Hard
on the heels of the reporters, whose prurient stories and intrusive photo-
graphs of victims have fuelled
our
indignation, come the disaster lawyers,
spluttering with righteous indignation, festooned with microphones through
which to broadcast the negligence of all and sundry and, inevitably, flourish-
ing bundles of writs. Yesterday, they would have been denigrated as “ambu-
lance chasers.” Today, they have to be taken seriously-so seriously, indeed,
that one major firm which acts largely for the defence has set
up
a “major
incident unit” on 24-hour call which
“will
rush lawyers to the scene of a disas-
ter to record the evidence” and, no doubt, with the television cameras and
journalists, get in the way of the police and emergency services. Such lawyers
present and perhaps even see themselves as selfless and tireless champions,
ready,
in
the interests of maximum compensation for their clients, to take off
for any and every court
in
the world which seems worth their financial while.
Their Mecca is, however, undoubtedly the United States, where, we are
informed through the microphones, the perfect tort system operates. Courts
are speedy; procedure is flexible and modern with class actions easing the
problems for plaintiffs; contingency fees make lawyers easily available to the
poorest litigants; judges are open-minded-more honestly, perhaps, plain-
tiff-minded-and juries generous
with
defendants’ money. Once again,
in
short, everything is done better than anywhere else.
Of course, this is an exaggerated depiction of modern accident litigation
though all the essentials are there. And the style of the personalities involved
is putting
our
accident compensation system under greater pressure than a
cost-conscious and reforming Lord Chancellor can do. In such a context,
there is a very real danger that, having rejected the measured proposals of
the Pearson Commission, we shall rush unthinkingly into piecemeal reform
of
our
system of personal injuries litigation, urged on by self-styled “disaster
lawyers”
like
Roger Pannone and interested pressure groups
like
CITCOM,
whose shopping list has found favour
with
a Member of Parliament able to
sponsor a Private Member’s Bill. The quality of the Lord Chancellor’s Green
Paper on Contingency Fees, best described as laconic, does nothing to allay
fears, even
if
its deficiencies have to some extent been cured by more serious
contributions from bodies such as the Consumer Association and Legal
Action Groupan economical method of law reform to which the present
Government seems much addicted. But pressure groups are not, as govern-
ment and the Law Commission (surprisingly silent on this subject) ought to
be, disinterested.
Hence an objective account of the American tort process which
is
so
often
being pressed upon
us
is extremely timely. Moreover, we should be grateful
that its author is Professor John Fleming, whose wide-ranging knowledge of
the world’s tort systems and impeccable scholarship make
him
the ideal refer-
ence-point
in
this over-emotional debate. Professor Fleming would disdain to
deal
in
the type of argument
I
have been parodying and the first point tostress
in
reviewing his account of the American tort process is its enviable thor-
oughness and objectivity. The book’s exhaustiveness, however, has not made
it
the less readable.
729
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