Volume 1997    Issue 2

Paul M. Van Arsdell, Jr. Memorial Lecture: The Beam in Thine Eye: Judicial Attitudes Toward "Early Offer" Tort Reform

Jeffrey O'Connell^* & Ralph M. Muoio^**

Professor O'Connell has recently drafted a statute that would allow a defendant in a personal injury tort suit to make an early settlement offer to pay an injured's economic damages. Under his proposal, a defendant need not make such an offer and if no offer is made, normal common-law tort principles apply. However, if an offer is made and a claimant does not accept the offer, the claimant will face a higher burden of proof at trial and the defendant will be held to a lower standard of care. In this article, originally delivered as a lecture at the University of Illinois College of Law, Professor O'Connell and Mr. Muoio respond to one of the possible stumbling blocks this proposal faces: the possible resistance of the judiciary to such reform. They begin their response by illustrating the irony of such a stance given the broad immunity afforded the judiciary. They then contrast this immunity with the expansion of liability for other professionals largely propelled by that same judiciary. Finally, the authors conclude that, given the unfairness often involved in second-guessing professional decisions, the early offer approach is a better solution to dealing with tort liability: The judiciary therefore should be receptive to it.

This paper was delivered as part of the Paul M. Van Arsdell, Jr., Memorial Lecture Series on Litigation and the Legal Profession at the University of Illinois College of Law, on November 7, 1996; its language, format and flavor reflect that origin. (Who was it who once said 'A lecture is meant to offend the specialist'?)

* Samuel H. McCoy, II & Class of 1948 Research Professor of Law, University of Virginia. B.A. 1951, Dartmouth College; J.D. 1954, Harvard University.

** Clerk to the Hon. Albert V. Bryan, Jr., U.S. District Court for the Eastern District of Virginia. B.A. 1991, Columbia University; J.D. 1996, University of Virginia.