Tuesday, October 21, 2008


Law school can be a fascinating thing. Let me just give you one example.

A tort is, roughly, a wrong committed to another person where there is no preexisting contractual relationship. There, now you know the single fact that most distinguishes lawyers from non-lawyers.

In torts (or "in tort," as I think you are supposed to say), damages are intended to compensate the victim (punitive damages are only for cases where the defendant is particularly nasty), meaning to restore him or her as much as possible to the prior condition. Compensation can be pecuniary (compensation for expenses you incur, like medical costs, lost wages because you were in the hospital, etc.) and nonpecuniary (other compensation for other harm you suffered). Nonpecuniary damages are typically thought of as "pain and suffering."

In McDougald v. Garber, 73 N.Y.2d 246 (New York, 1989) (that all means that it is on page 246 of the 73rd volume of the second series of New York reports, and it was decided by the highest court of New York in 1989 - now you know another thing that distinguishes lawyers from non-lawyers), the plaintiff was comatose - whether she had any conscious awareness was in question. All the judges involved agreed that pain and suffering could only be awarded if the plaintiff had some conscious awareness (because otherwise there is no pain or suffering, as those are subjective by definition). However, they disagreed on the issue of "loss of enjoyment." The idea here is that, for a conscious victim who has no neurological loss, I not only have pain and suffering that I didn't have before, but in addition my quality of life is lower because I can't do things I would otherwise do - play tennis, go skiing, climb mountains, whatever. The question is, should a comatose victim be entitled to damages for loss of enjoyment, even if she has no conscious awareness? Assuming that the "enjoyment" that she lost is worth $1 million, does granting her that $1 million compensate her in any way? Does the fact that the money would almost certainly go to her family or heirs make a difference? (They could potentially bring a separate suit for loss of companionship.)

There, that's law school for you.