Motivating Hypothetical

A potential client comes to your office, explaining that she is recently divorced, and that her mental and physical health are still greatly negatively impacted by the abuse her ex-husband used to subject her to.

Is your initial reaction to be enthusiastic about representing her or not? Why or why not?
What steps would you take to provide culturally competent representation during the initial consultation?
The potential client lists several types of abuse she experienced during her marriage. You write them down:

1. Angry displays of shouting, sometimes accompanied by physical intimidation, if she dared to criticize him.
2. Once, in anger, he grabbed her painfully by the wrist; she suffered no physical injury from this.
3. Criticizing and putting her down approximately 20 times a week over a period of two years.
4. Destroying a musical instrument of sentimental value to her, knowing it would upset her.
5. Turning on the lights in her car some evenings, so that she would be unable to drive to work the next morning.
6. Trapping her in the master bathroom while screaming at her for 10-15 minutes.
7. Grabbing and walking off with their toddler, who was at the time seated on her lap.

You study pair or group does won't have time to consider all of the possible claims today. Randomly select one or two items from the (A-G) list to spend 10-15 minutes considering today. Revisit the other items before the exam.

For each item you address:

(1) Spot all tort(s) that might fit those facts (Issue)

(2) Outline the elements (Rules)

(3) Explain which elements will be easy to meet, based on her initial account (Application)

(4) Identify which elements require more information than has initially been given to you (Application)

(5) Note what questions you'll absolutely need to ask the client to elicit "legally essential facts." Keep in mind that asking for unnecessary details could retraumatize her or vicariously traumatize you. (Application)

(6) Brainstorm additional evidence you could try to develop* to support each element; (Application)

(7) Discuss which defenses the defendant's lawyer would likely assert. (Issue, Rule, Application)

(8) Does that act constitute a tort or not? Express your answer as "yes/no/it depends on... because...." (Conclusion)

* Developing evidence refers to preparing your plaintiff to testify, pre-trial depositions of the defendant and witnesses, locating relevant written records, etc. Never assume that "What You See Is All There Is" -- the basic facts outlined above are merely your starting point. It takes legwork to develop a factually strong case for a client.

4. What other factors do you and she need to consider in deciding whether to sue?

5. If you were challenged to address all of these items on a 45-90 minute exam, consider at least two possible ways of organizing your answer. Which approach do you think would be the most efficient?

A Deeper Perspective

The following excerpt from the introduction to Professor Weiner's law review article, published in 2020 by the students of the Arizona Law Review, has been abridged by Professor Shaver and footnotes omitted.

Students may wish to consult the full version at ssrn.com for a more detailed look at how legal scholarship is typically formatted, outlined, and footnoted, since you will complete a similar work product of your own before graduation.

CIVIL RECOURSE INSURANCE

INCREASING ACCESS TO THE TORT SYSTEM FORSURVIVORS OF DOMESTIC AND SEXUAL VIOLENCE

Electronic copy available at: https://ssrn.com/abstract=3728240

Merle H. Weiner*

*Philip H. Knight Professor of Law, University of Oregon. I am indebted to the students on the Arizona Law Review for their fabulous work editing this Article.

The #MeToo movement has exposed the ubiquitous unwanted sexual behavior that women and some men experience. Survivors (or victims, as I occasionally say) experience indignities in their workplaces, schools, neighborhoods, and homes. No space is safe. Survivors’ injuries fall along a spectrum from annoyance and inconvenience, to severe injury and pain, to death.

Many of the acts—including groping, threats of physical harm, and rape—fall squarely within the parameters of traditional tort law: battery, assault, false imprisonment, trespass, and intentional infliction of emotional distress. The behavior sometimes also violates state statutes that provide for civil liability, including punitive damages.

Occasionally survivors sue their perpetrators, but most do not. The high-profile lawsuits against Harvey Weinstein, Larry Nassar, and Jeffrey Epstein mask this important fact, although scholars have repeatedly recognized it. In 2018, Jennifer Wriggins noted, “there is almost no tort litigation” against domestic violence perpetrators; Martha Chamallas made the identical point with regard to sexual assault perpetrators, calling these claims “still quite rare.” One author estimated that fewer than 1% of all sexual assault survivors pursue a tort suit.

This Article explains why survivors of gender-based violence often do not sue their perpetrators and then proposes a solution. While a tort suit offers what survivors want most from the legal system—accountability, revenge, empowerment, and deterrence—survivors generally cannot find lawyers to take their cases. Most plaintiffs’ lawyers require the prospect of a substantial collectible judgment, something these cases frequently do not offer even when survivors are successful. This reality creates a justice gap and exposes survivors to further harm as plaintiffs’ lawyers reject them as clients at a time when they need support.

“Civil recourse theory,” which has gained traction over the last 20 years as an important justification for tort law, explains why survivors deserve access to the tort system regardless of the prospect of a substantial collectible judgment. This proposal builds upon the work of scholars who have also proposed market-based insurance solutions to address survivors’ needs, but tries to avoid the pitfalls that have stymied prior proposals. Civil recourse insurance would be a form of legal expense insurance that, if purchased before the victimization, would allow a survivor to sue her perpetrator in tort with her insurance company paying for her lawyer. The lawyer would pursue her claim regardless of whether her judgment would be substantial or collectible, so long as the claim had merit. This insurance would be, in effect, a new type of prepaid legal plan (also known as a legal services plan), an already popular product in the United States.

It would improve upon existing prepaid legal plans because they hardly increase the amount of plaintiff-side representation for survivors. Consequently, this new product would be more like the legal expense insurance that exists abroad, such as in Germany and the United Kingdom. In addition, to maximize the usefulness of the insurance benefit, this Article recommends that the insured be allowed to utilize her lawyer in the forum that best meets her needs for recourse, such as the civil legal system, a school disciplinary process, or even the criminal justice system. Ideally, the coverage would allow representation in more than one forum. The insurance would also provide the insured with legal advice about these options.

A preliminary analysis suggests that premiums could be in the range of approximately $100–$350/year, depending upon certain assumptions, and that insurers would make a profit. Nonetheless, this Article recommends that the government take specific steps to ensure the success of the market and the affordability of the product for all.

Civil recourse theory itself provides a strong case for the desirability and appropriateness of governmental action.

This Article unfolds in four parts. Drawing heavily on other scholars’ work, Part I elaborates on the problem. Survivors are often unable to sue their perpetrators because attorneys, who work on a contingent-fee basis, will not take their cases. A substantial collectible judgment is typically foreclosed because of insurance exclusions, laws that protect tortfeasors’ assets, and insufficient damages. Other potential methods for accessing the civil justice system, including representing oneself in small claims court, obtaining an attorney from a prepaid legal plan, taking out a lawsuit loan, relying on statutory attorneys’ fees, or using Legal Aid, are either unrealistic, unavailable, or unwise. Part I also demonstrates that efforts by some plaintiffs’ lawyers to find a deep pocket, through “underlitigation” of claims or filing suits against third-party defendants, are tactics that can be unavailing or unsatisfying.

Part II explores the reasons why the tort system is so important for survivors. Using anecdotes and empirical data, this Part demonstrates that survivors often want something other than compensation, a fact that puts them at odds with what lawyers want. In particular, survivors want accountability, revenge, empowerment, and deterrence. All of these goals could be furthered in the tort system regardless of a survivor’s actual recovery. Part II also briefly addresses survivors’ need for compensation. It recognizes the inadequacies of existing compensatory mechanisms but argues that solving that problem should not delay increasing access to the tort system for noncompensatory reasons. Part II then employs civil recourse theory to show that the tort system exists to meet a plaintiff’s need for accountability, revenge, empowerment, and deterrence, regardless of financial compensation.

Part III lays out prior proposals to use third-party liability insurance and first-party loss insurance to meet survivors’ needs. It identifies the particular obstacles that hampered the commercial success of those proposals and explains why those solutions were not optimal from the perspective of survivors. The discussion illuminates the merit of civil recourse insurance as a product.

Part IV then sets forth the details of the new insurance product and addresses issues of price, demand, and supply. Moral hazard and adverse selection are specifically analyzed. The German system of funding tort litigation is briefly described in order to make concrete the economic feasibility of legal expense insurance. Building upon the work of civil recourse theorists, Part IV also articulates the case for governmental involvement. It describes four governmental initiatives that would help develop and sustain a market for civil recourse insurance: insurance vouchers, reinsurance, governmental insurance, and mandatory coverage requirements.

Part IV concludes by examining the principal concern with the proposal: that insurance companies might exercise their power over their insureds in a way that would undermine survivors’ wellbeing. Section IV.D acknowledges the merit of this concern and proposes some solutions to reduce its likelihood.

Questions to Consider

By Professor Bishop

Intuitive Reactions

Do you see yourself as a winner or a loser if this proposal were adopted? Why?
At what price would you personally consider it worthwhile to purchase this type of insurance for yourself?
Would you be more or less willing to purchase such a policy for other members of your family? Why or why not?
Why might these types of tort claims not result in substantial awards? Use parallel universe thinking!
What aspects of your social identities and personal life experiences shape your answers to the above?

Descriptive Understanding

What would victims/survivors with this insurance be empowered to do that non-holders of the insurance could not?
What benefits does Professor Weiner argue this would achieve?
Does this proposal require government support to achieve its aims? What kind of support?
What possible variations of the proposal does Professor Weiner outline? What problem is each designed to solve?

Normative Conclusions

Do you spot other potential benefits or drawbacks that Professor Weiner has not mentioned here?
Suppose that the wealthiest 20% of American women all decide to purchase this insurance. Do you think this level of coverage have trickle down benefits for the 80% of women at lower-incomes? Why or why not?
When you someday are helping to manage a law firm, corporation, or nonprofit, what advantages and disadvantages would you consider in deciding whether to purchase such insurance as an employee benefit?
Should government (local, state, or federal) simply directly cover the costs for all members of society to pursue such claims? What advantages and disadvantages do you see? Which weigh most significantly, in your opinion?