The individual plaintiff plays a critical—yet underappreciated—role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have become a rare phenomenon, if not a virtual impossibility. The architecture of liability, by making causes of action more complex and difficult to prove, while equipping defendants with multiple defenses, coupled with the fact that large corporate defendants enjoy a vast cost advantage over individual plaintiffs on account of superior legal expertise and economies of scale and scope, make it nearly impossible for individual plaintiffs to prevail in court, or even get there. This problem pervades many industries, but, for the reasons we detail, it is particularly acute in the insurance, healthcare, medical, and consumer finance sectors.
To address this growing problem, we propose a full-fledged legal reform that encompasses substantive, procedural, evidentiary, and remedial measures. Substantively, we explain how civil liability should be redesigned to give a fairer chance to individual plaintiffs. Specifically, we call for the simplification of causes of action and the elimination of cumbersome elements that doom many individual lawsuits. Procedurally, we propose a fast-track litigation course that would enable courts to resolve disputes expeditiously. As we show, the introduction of this new procedure would deprive corporate defendants of one of their most critical advantages: the ability to extend litigation over long periods of time and make it more costly than it should. Evidentially, we recommend that lawmakers shift the burden of proof of certain disputed elements from plaintiffs to defendants and explain how this could be done. Finally, as far as remedies are concerned, we make a case for a new preliminary remedy—a partial payment order—define the conditions under which it should be awarded, and argue for a more extensive use of statutory damages and damage multipliers. Implementing our proposed reform will go a long way toward restoring the pride of place individual plaintiffs traditionally held in our legal system.
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