Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
Belli and the fledgling ATLA worked to replicate on the plaintiffs’ side the defenseside
systems of claims administration that had long minimized the costs of claims
resolutions for insurers, railroads, and other repeat players. Increasingly
sophisticated referral networks arose within the plaintiffs’ bar, for example, that
allowed nonspecialists to send cases along to specialists while retaining a share of
the fee. At the same time, plaintiffs’-side law firms grew and chose to specialize
rather than diversify their practices. The result was a sharply increased
concentration of claims in the hands of a small number of specialist plaintiffs’ firms.
. . .
Specialist claims administrators on both sides developed an array of shortcuts and
bargaining conventions for the streamlined, stereotyped resolution of the claims that
entered the system. Where the common law entailed cumbersome and slow
inquiries into the facts of a particular case, private administrative schemes operated
by plaintiffs’ lawyers and insurance company claims adjusters aimed to produce . .
. “a collectively satisfactory return” on the run of the claims they resolved. . . .
Perhaps the most important shortcuts of all were the ones developed to arrive at
claims values. In the American law of torts, the damages to be awarded in any given
case were (as they remain in the early twenty-first century) enormously open ended.
What, after all, was an arm, or a leg, or a bad back worth? Economic loss might be
measured with relatively concrete measures such as wage loss and medical bills (in
practice, economic damages were often quite malleable). But with respect to openended
injuries such as pain and suffering, the common law provided virtually no
guidance to judges and juries or to the lawyers and claims adjusters who sought to
settle such cases in the shadow of the law.
And so claims adjusters and plaintiffs’ lawyers alike employed “yardsticks” or
bargaining conventions of one sort of another to arrive at damages determinations.
The “three times three” rule (in which pain and suffering damages equaled three
times a plaintiff’s economic damages) governed in some jurisdictions and among
some adjusters and lawyers. Elsewhere, plaintiffs’ lawyers followed the complex
“Sindell Formula,” created by NACCA lawyers at the Cleveland firm of Sindell &
Sindell. Chicago lawyers who in the 1950s and 1960s created formal tables for the
valuation of back and neck injuries, tables they continuously revised by reference
to jury verdicts in the relevant area. . . .
JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES OF AMERICAN LAW
(2007). Belli’s three-volume compilation, Modern Damages, collected damages awards and
settlement values for every conceivable kind of injury. Plaintiffs’ lawyers called it “a Golconda
of information, comparable to Bowditch’s Practical Navigator,” a veritable “vade mecum” for the
plaintiffs’ bar. Belli provided the plaintiffs’ bar with the same kinds of settlement value
information that their insurance company counterparts had long enjoyed. In the process, the
plaintiffs’ bar grew to be able to compete with their defense counterparts like never before.
Of course, trial lawyers alone did not transform pain and suffering damages. A long
history of institutional transformations and changes in public attitudes lay the groundwork for the
trial lawyers’ successes:
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