Jonathan Masur: "Hedonic Adaptation and the Settlement of Civil Lawsuits"

Assistant Professor of Law Jonathan Masur (along with coauthors Christopher Buccafusco and John Bronsteen) recently posted a paper called "Hedonic Adaptation and the Settlement of Civil Lawsuits" to SSRN (the paper will also be published in an upcoming volume of the Columbia Law Review). The abstract is below and the full paper can be downloaded here.

This paper examines the burgeoning psychological literature on happiness and hedonic adaptation (a person's capacity to preserve or recapture her level of happiness by adjusting to changed circumstances), bringing this literature to bear on a previously overlooked aspect of the civil litigation process: the probability of pre-trial settlement. The glacial pace of civil litigation is commonly thought of as a regrettable source of costs to the relevant parties. Even relatively straightforward personal injury lawsuits can last for as long as two years, delaying the arrival of necessary redress to the tort victim and forcing the litigants to expend ever greater quantities of resources. Yet these procedural delays are likely to have salutary effects on the litigation system as well. When an individual first suffers a serious injury, she will likely predict that the injury will greatly diminish her future happiness. However, during the time that it takes her case to reach trial the aggrieved plaintiff is likely to adapt hedonically to her injury - even if that injury is permanent - and within two years will report levels of happiness very close to her pre-injury state. Consequently, the amount of money that the plaintiff believes will fairly compensate her for her injury - will make her whole, in the typical parlance of tort damages - will decrease appreciably. The sum that the plaintiff is willing to accept in settlement will decline accordingly, and the chances of settlement increase - perhaps dramatically. The high costs of prolonged civil litigation are thus likely to be offset substantially by the resources saved as adaptive litigants succeed in settling before trial.

Comments

[Joan A. Conway, Pro Se Litigant In Forma Pauperis]

I can't argue with what you have said so well.

However, if the other party expends your resources and offers you a nuisance fee, when you are expecting $300,000 or better per defendant, you are forced to find out what was missing in your case.

What requirement was required under statute, like the right agency's right to sue letter when you are a former state employee, and not the wrong agency's right to sue letter.

Even when the USDOJ's mails you the right to sue letter, and attorneys are forced to resign themselves that the court still would recognize religion as a basis under the CRA of 1991, then frustration sets in with a small settlement from the trial on national origin.

Attorneys are not always the answer as I have noticed in my co-workers lawsuits.

I got further than they did, even the one that got $365,000, in a few years, and his promotion that left him without a job a few years later.

Nothing like the attention of a Pro Se Litigant In Forma Pauperis, who is determined to go the distance at whatever the cost.

There is always punitive damages when enough is not enough.

Hindsight and loss of happiness are compensated my personal growth and human development, even when your health is failing at an accelerated rate, like mine is lately now with lumbar spine arthritis, previously left hip osteo-arthritis.

This would have happened anyway. Remember I was a former ballerina, tap dancer, acrobat, and toe dancer from 4 to 13 years old.

I still did acrobatics into my forties.

These physical activities may have unexpected consequences in your later years.

I learned early to take physical pain.

I hope this will now serve me well as I turn 70 in a few days, and file my Motion to Modify and Rescind within 2 months my Seventh Circuit Sanctions.

California here I come, right back where I started from!

[Joan A. Conway, Pro Se Litigant In Forma Pauperis]

Corrections, because I type very fast and it is a notebook where the cursor moves around a lot.

Fourth paragraph, would not recognize;
Ninth paragraph, by personal growth;
fourteenth paragraph, of my Seventh Circuit Sanctions.

Degenrative Lumbar Disc Disease in the Mature Athlete states that disc height reduction was much more common in athletes than nonathletes, and, specifically, it is most prevalent in wrestlers and male gymnasts, and water ski jumpers have a high frequency of disc space narrowing. It is what I suspected.

[Walker]

As an attorney who primarily works in corporate defense, often in personal injury cases, I have to wonder if these authors' findings do not merit the following conclusion: to zealously represent my defendant-clients, should I delay the litigation process as much is as legally and ethically allowable?

A side point: just because a plaintiff's overall description of her own happiness adjusts/re-centers to the norm over time, should jurors focus on the current state of a plaintiff's happiness years after the plaintiff's injury to determine damages, or should they ask, how much would someone have to pay me to suffer an equal harm? I tend to think the latter is correct, no matter what natural hedonic psychological adjustment occurs.

[Joan A. Conway, Pro Se Litigant In Forma Pauperis]

If a defense attorney's arguments of error are wholly without merit,and the plaintiff has been damaged sufficiently to justify the exercise of the court's discretion in the plaintiff's favor, the court would award damages,the court has the discretion to award damages for delaying, and harassing the plaintiff, under Fed. Ru. Civ. P. 11.

This goes to show you how a Circuit can demonstrate its bias, based on how it sees the plaintiff's ability to readjust, not the plaintiff's personal achievement, but belonging to a group of other people, who have experienced similar-life-altering events in their lives, and diminish the plaintiff's individuality and injury for the so-called common good.

In my case, I wasn't so much upset with the defense attorney, although she did not get waivers for her conflict-of-interest(s) in representing the same Plaintiffs, who were Defendants, when they decided to sue too. Rule 11.

I was upset with the lower court shinnegans. I had too many cooks in the kitchen, for one thing, and 6 months to prepare a Report and Recommendation proved very little.

The last judge ignored the results due to the missing U. S. Department of Justice's right-to-sue letter.

My parallel case, under Fed. Fair Housing Act, also went the same way, "not a crucial piece of evidence was filed" read the order and judgment in a quid pro quo claim for not having a 'job.'

Of course, this is against the manifest weight of the evidence which I plead in my Motion to Modify and Rescind the Sanctions of $1,000, and a 2 year bar from filing any more civil rights claims.

I have at least 10 on the dockets waiting for me to prosecute, not to mention the outcome-derivative 42 U.S.C. Section 1983 claim(s) after a judgment in my favor is signed in the record.

I also have new claims on post-discriminatory practices, breach of loyalty, breach of oath, dishonest services, Americans with Disabilities Act claims, Negligence claims.

I hope I live a long time.

But you cannot relate to this nightmare unless you have been through one of these 15 year lawsuits yourself.

Much is lost, especially your family ties.

If I was lucky, I would of seen another path.

Since I am a Certified Public Accountant, with only a 6 month internship, I was blocked in my profession.

I would have done it differently if I knew then what I knew now.

Being a Monday morning quarterback, I would have never gone back to school. I'd settle for the fact that being self-educated has its merits, and build a career in real estate instead.