Once the state has resolved that first step of determining whether the defendant is legally liable in a civil dispute, the state then proceeds to the second step of calculating the damages owed by the defendant if the defendant is found to have breached the contract or been negligent or liable. The purpose of the calculation is described as “making the plaintiff whole”—i.e., insofar as is possible, to restore the plaintiff to the condition that she would have been in if there had been no breach or negligence. For instance, suppose that the seller signed a contract to sell to the buyer 100 chickens at $7 per chicken, that the seller then breached the contract by failing to deliver the chickens, and that the buyer as a result had to buy 100 chickens at the higher price of $10 per chicken on the open market, thereby forcing the buyer to spend an extra $300 above the contractual amount. In a court case the seller would be ordered to pay to the buyer those damages of $300, plus costs incurred in securing the new contract, plus perhaps interest for the lost use of that $300, thereby restoring the buyer (at least nominally) to the position in which he would have been if the seller had not breached the contract. Similarly, in the case of a tort, the court will attempt to calculate the damages, although that is more difficult to calculate for physical or emotional injury to a person than for damage to property. (I recall a lawyer friend of mine who was defending a motorboat-owner whose motorboat propeller had severed the leg of an elderly swimmer, and who argued to the jury that the value of the severed leg was modest because of the victim’s advanced age and short expected remaining lifespan even before the accident.)
Superficially, the state’s calculation of damages seems similar to compensation negotiated in New Guinea or among the Nuer. But that is not necessarily true. Whereas the standardized compensation for some New Guinea and Nuer offenses (e.g., 40 to 50 Nuer cows for taking a person’s life) could be construed as damages, in other cases non-state compensation is calculated as whatever amount the disputing parties agree on as the basis for putting behind them their injured feelings and resuming their relationship: e.g., the pigs and other goods that my Goti Village friends agreed to pay to the clans that had killed the father of my Goti friend Pius.
Defects in state civil justice
The defects in our state system of civil justice are widely discussed by lawyers, judges, plaintiffs, and defendants alike. The defects of the American system are variously more or less severe in other state societies. One problem is that court resolution of civil disputes tends to take a long time, often up to five years, because criminal cases take precedence over civil cases, and judges may get re-assigned from civil court to criminal court in order to try criminal cases. For instance, at the time that I drafted this paragraph, no civil cases were being tried in Riverside County just east of my home city of Los Angeles because of a backlog of criminal cases. That means five years of irresolution, living in limbo, and emotional torment, compared to the five days that it took to settle the case of Malo’s accidental killing of Billy. (However, the clan warfare that might have resulted if Malo’s and Billy’s case hadn’t been resolved by negotiation could have lasted much longer than five years.)
A second claimed defect of state civil justice in the U.S. is that, in most cases, it fails to require the losing party to pay the lawyers’ fees of the successful party, unless that had been specified at the outset in the contract under dispute. That failure, it is often argued, creates an asymmetry favoring the wealthier party (whether that is the plaintiff or the defendant), and placing pressure on a less wealthy plaintiff to settle for less than the actual loss, and on a less wealthy defendant to settle by paying a frivolous claim. That’s because wealthy parties threaten expensive litigation, adopt delaying tactics, and file endless discovery motions in order to wear down the other party financially. It is illogical that the goal of civil justice should be to make the aggrieved party whole, but that the loser should not be required to pay the winner’s attorney fees in the U.S. In contrast, legal systems in Britain and some other countries require the loser to pay at least some of the winner’s fees and costs.
The remaining defect of state civil justice is the most fundamental one: that it is concerned with damages, and that emotional closure and reconciliation are secondary or irrelevant. For civil disputes pitting against each other strangers who will never encounter each other again (e.g., two people whose cars collide), in some cases something could be done to promote emotional closure and avoid a life-long legacy of non-resolution, even if it merely involved offering both parties the opportunity (if they consent) to air their feelings to each other, and to perceive each other as humans with their own motives and sufferings. That can be possible even under such extreme circumstances as when one of the parties has killed a close relative of the other party. Better than no emotional exchange at all was the exchange that did take place between Gideon and Billy’s father—or the exchange between Senator Edward Kennedy and Mary Jo Kopechne’s parents, when Kennedy on his own private initiative courageously visited and looked into the faces of the parents whose daughter’s death he had caused through his own gross negligence.
Worst of all are the innumerable civil cases in which the parties in a dispute do potentially have the prospect of an on-going relationship: notably, divorcing couples with children, siblings in inheritance disputes, business partners, and neighbors. Far from helping to resolve feelings, court proceedings often make feelings worse than they were before. All of us know disputants whose relationship became poisoned for the rest of their lives by their court experience. In merely the latest in a long list of such stories among my own acquaintances, one close friend of mine and her sister were subpoenaed in an inheritance court case between her brother and her father, who were suing each other. The bitterness left by those judicial proceedings was such that my friend and her sister are now being sued by their own stepmother, and that both my friend and her sister expect never again to speak to their brother as long as they live.
One suggestion often made about how to mitigate this fundamental defect of our civil justice is to make increased use of mediation programs. They do exist, and they are often helpful. But we don’t have enough mediators and family-law judges, our mediators are undertrained, and our family courts are understaffed and underfunded. As a result, divorcing couples often end up talking to each other only through their lawyers. Anyone who has repeatedly visited family-law courts knows that the scene there can be horrible. Opposite parties in a divorce case, their lawyers, and their children may have to wait in the same waiting room with each other, and with disputants in inheritance cases. To mediate effectively, one must make the parties feel comfortable first: that’s impossible if they have been glaring at each other for hours in the same waiting room. Children get caught in the middle of arguments between divorcing parents.
A judge can and often does require parties to participate in an attempted settlement conference before letting the case proceed to trial. But it takes time and skill for a mediator to make a mediation or settlement conference work. Mediation commonly requires much more time than is allowed for a mandatory settlement conference. Even if the parties in the dispute are not going to have any future relationship, successful mediation would decrease future burdens on the court system: burdens arising from the parties going to the expense of a trial, or else being dissatisfied with the decision and coming back to court with future complaints, or settling only after a long expensive fight.