Our legal system has gone haywire in the last 40 years when it comes to tort law. I argue that our legal system is somewhat haywire altogether. The problem is that we started to try to create utopia, where no accidents are permitted to happen and some notion of perfect process is required.
Any accident is presumed to be someone's fault and someone must pay. In the process leading up to trial, the discovery phase can drag on for years, as the legal system tries to make sure that every fact and every theory under the sun is accommodated. And at trial, common sense is often tossed out the door in favor of arcane rules of evidence.
The legal system is designed to drag things out and to encourage lawsuits to be filed. It is no conspiracy, it's just what is naturally going to happen when lawyers (like myself) are mostly the ones writing the rules. In this quest for utopian justice, what gets ignored are the huge costs upon society.
The main cost is monetary, as we all spend untold thousands of dollars taking measures to avoid being sued, many of those measures offering no extra safety or any other good. Another cost that is not as obvious is the decision to not allow people to do things, simply for fear of being sued. For example, at our camp last summer, we had a couple of people question my decision to bring out the Slip N Slide, because someone could get hurt (and we certainly can't have that in 2011) and we might get sued. We used it anyway. But there are so many fun and worthwhile activities that people are no longer permitted to do because of our legal system (and overbearing do-gooders), and that cost is not even factored into the decisions made by that system. The legal system's inflexibility and the media's overplay of the oddball case (McDonald's coffee) causes schools and other institutions to be probably twice as cautious as needed, thereby further placing the clamps on our activities. Remember when a school would not be terrified of people using a field or a gym? Nowadays, if an outside group wants to use our softball field, the amount of paperwork is insane. They have to be a non-profit organization, they must have ample insurance, safety procedures must be in place, and on and on and on. This is not the society in which I want to live. We need more judges to tell people that they assumed the risk.