Civil litigation sounds like a complicated legal term. It is a dispute between parties that is not a criminal case, so it could be a corporation versus corporation, domestic cases are part of civil litigation. Contract disputes that go to court are civil litigation, insurance claims, personal injury claims those are civil litigation, and so it is just a dispute between parties. It’s what a typical lawsuit would be.
Now, most people don’t realize that we hear about the lawsuit explosion and those sort of things, those are all civil litigation but where the “explosion is” is contract claims between corporations and domestic claims. There has not been an explosion in injury claims. Although some of our political people like to say that and those sorts of things, that’s really not true.
Our civil litigation system provides a framework for us to handle our disputes, contract disputes, business disputes, insurance claims and personal injury disputes in a civilized organized fashion. It is why it’s called civil litigation, civil organized fashion. It is very important because those rights, that’s what separates our country from the rest of the world is that we have that because in some instances you handle things like wrongful death and drunk driving accidents, there is a civil litigation but isn’t there also a criminal litigation? Sure drunk driving is a perfect example.
So if somebody is injured, I was in a drunk driving incident, so an impaired driver hit me, damaged my car, had some minor injuries, so there are 2 different legal proceedings taking place, there is the criminal case that actually went to trial.
- I had to testify in that in a criminal court. There is a prosecutor, a defense attorney, and a judge and then there’s the civil claim.
- The civil claim, in this situation, is processed through the insurance company and that’s a civil claim.
So although they are related there are 2 separate cases on 2 separate paths, the criminal case, and the civil case. Does that make sense? Yes, it does make sense. Obviously in the way that you do, but in talking about contract disputes, isn’t there a move now where a lot of these insurance policies and things like that are pushing you to arbitration instead of litigation? A lot of contracts have arbitration clauses.
Arbitration clause means you and me have a contract together. If there is a dispute we have to take it to an arbitrator. Many times there are rules such as there is an organization called the American Arbitration Association, so the arbitration clause may say if we have a dispute we will handle that through the American Arbitration Association. That’s nice for 2 business people because they can efficiently resolve their claim.
The problem is that for a customer of a business who’s not a sophisticated business person, who unknowingly signs an arbitration clause, they are being thrown into a sophisticated business arbitration process and they lose the right to a jury by their peers.
A jury of your peers is a foundation of the civil litigation process and quite frankly it’s being eroded. The jury process in civil litigation that is what gives you the rights and the power of the most sophisticated people. For most of human history before the United States came about, for the most of human history, the rules and regulations of society were the rich and the powerful period. What the rich say that’s what you do. What the powerful says, that’s what you do, and the ordinary person has no rights whatsoever.
In the United States the ordinary person on the street has the same rights as the biggest corporation in America and if there is a dispute, they can take that in front of a jury of their peers for resolution. It’s not controlled by the rich and the powerful. It is controlled by a jury of the peers. That’s a great equalizer in our society and it is very important for individual freedoms and our individual liberties.