Vaughan,

A few thoughts to tack onto Benjamin's and Russ' helpful suggestions:

1. Defendants are people too - I spend half a class talking about how to

defend a torts suit on behalf of a defendant. Often, defendants are not

always the Darth Vaders of the world, but folks who would never be in the

suit, but for a moment's inadvertence. [The old Johnny Cash song of "I Hung

My Head" comes to mind, about the guy who accidentally squeezed the trigger

of the rifle and killed someone...] A hypo forcing students to think about

how to defend a tough suit from the defendant's perspective often draws a

lot of this out (for example, I use a case involving a child as the tort

victim).

2.  Contingency fees and accident and injury work - Benjamin mentions this

in his "assignment" idea below, but the general concept always prompts

ethical discussions

3. About Benjamin's #6: here's a few cases I use when I talk about

discrimination in damages in the Canadian context (in addition to the case

Tonneguzzo-Norvell case Russ Brown mentions):

    i. Gendered Earning Tables

      MacCabe v. Westlock R.C. School

    ii. Children (Age)

      Brown v. University of Alberta Hospital

    iii. Race, Ethnicity, Education and Socio-economic Status

      Parker v. Richards

      Pett v. Pett

4. Insurance concerns - Benjamin and Russ also mention this one - I've

always been mystified as to why insurance is not front and centre in

standard Torts classes (something I try to rectify but often feel I'm alone

in the wilderness..). Be that as it may, the dynamics of insurance behind

the torts system and the importance of insurance as the funder of the system

can prompt ethical discussions about conflicting duties, where the money

comes from, how insurance drives and prompts torts suits and settlement, the

dynamics of insurer involvement in tort litigation (i.e. settlement value

versus precedential value), and the all-important issue of insurance

coverage. Tom Baker has a good piece on some of the basics on which one

could draw out in a discussion: "Liability Insurance as Tort Regulation: Six

Ways..." (2005) 12 Conn. Ins. L.J. 1.

5. Juries - no matter what side of the border (or globe) one sits on, juries

and torts suits always prompt discussions about ethics - do they work, what

can one do, evidence issues, strategy (i.e. why a defendant or plaintiff

would or would not want a jury, etc.). Lots of fun.

6. The difficult case - this is another one I use toward the end of the year

- put a very difficult-to-take case before the class and ask them whether or

not they take it. Choose something that pulls at moral, sympathetic,

religious, or other fibres. Some examples could be to defend a company whose

drug harmed children, or to take a claim based on consent issues around a

person who wanted to refuse blood products for religious reasons, or to

represent an injured abuse survivor in his or her fight against the alleged

tortfeasor who is a leader in the students' own religious group (whatever it

is). This forces everyone to think about their own values as future lawyers

and their comfort with certain cases - or causes.

Best of luck, Vaughan!

Erik

On 10/11/09 9:34 AM, "Benjamin Zipursky" <bzipursky@law.fordham.edu> wrote:

> Your question about how to integrate legal ethics and torts is of great

> interest to me.  

> I think there are a number of legal ethics issues that can be brought into a

> torts class, although I confess that I do not integrate them as well or as

> consistently as I think I should.   Here is a sampling of some of the

> tort/legal ethics issues that I think are of significant interest even apart

> from the pedagogical directive you have received.   They are, to different

> degrees, possible and valuable to bring into class.   [N.B. Some will cross

> national borders better than others.]

>

> 1. Duties to non-clients in legal malpractice claims.   It is not just

> intended beneficiaries of wills who now sue lawyers for negligently drafting

> the will.   There is a range of cases, including also those providing opinion

> letters for a transaction in which non-clients are involved.   These raise

> interesting conflict of interest questions in legal ethics and they raise

> interesting questions on the "duty" element of negligence.

>

> 2. Duties of candor to the tribunal in settlement of a personal injury claim.

> The American classic Spalding v. Zimmerman , 116 N.W.2d 704 (Minn. 1962) is a

> great case of this nature.

>

> 3. Aggregate litigation and settlement.   This happens to be an issue

> currently of great importance to the American Law Institute and its Aggregate

> litigation project.   As is well known, the asbestos litigation in the U.S.

> has been difficult to bring to any closure because of conflicts of interest

> problems that were said (by the U.S. Supreme Court, rightly in my view) to

> present an obstacle to class certification under the Federal Rules.   Less

> well known, but currently more important, is the cluster of legal ethics

> problems that bedevil lawyers for both sides when they try to settle non-class

> aggregate litigation, like the Vioxx litigation.   The big question is whether

> the system does or should permit a plaintiff's law firm that has a raft of

> 1,000 personaly injury clients -- not part of a class -- from making a package

> deal with the defendant without really providing each client any say in

> whether he or she accepts the terms of the settlement.   The obvious answer is

> that this is impermissible, as ethics rules now stand.   The interesting

> question is whether lawyers should be permitted to have their clients

> authorize such settlement in advance (with certain conditions), when they sign

> a retainer agreement.

>

> 4. A variety of questions about the morality of extended motion practice and

> onerous discovery requests and claims of privilege will be more easily

> appreciated in torts case, in my view, than in many other contexts.

>

> 5. There are currently, in the U.S., disputes about whether tort claims should

> be assignable and whether "maintenance" and "champerty" should be permitted.

> These are also legal profession/ethics/torts issues.

>

> 6. Perhaps this is more political and constitutional than ethical, but I think

> it is of interest to students: should a defense lawyer presenting actuarial

> testimony about diminished (or eliminated) future earnings of an injured (or

> deceased) plaintiff put forward statistics that are gender-based or race-based

> (e.g., plaintiff Smith would not have earned as much as a physician as the

> average in the twenty professional years she lost because of the injury

> defendant inflicted, because women physicians earn less than average).   Most

> defense lawyers will be careful not to use such words, of course, but their

> experts may well provide actuarial data that in essence makes the same point.

>

> I hope this is of some help.

>

> Regards,

> Ben Zipursky

> Fordham Law School

> New York, NY

>

>

>>>> Vaughan Black <Vaughan.Black@dal.ca> 11/09/09 10:24 AM >>>

> Colleagues, I would be interested in hearing suggestions of fruitful avenues

> for

> introducing questions of legal ethics and professional responsibility in a

> torts

> course.

>

> When I used to teach contracts I found this pretty easy. For instance one

> might

> identify a contractual term that would be ineffective against consumers and

> then raise the question of whether it would be ethical for a contract drafter

> to include such a term in a standard-form contract (knowing that some

> consumers

> would read the term and think they were bound by it, even though they were

> not).

>

> The institution I teach at says that I am supposed to bring discussions of

> lawyers' ethics into the classroom in my substantive courses, but in my

> teaching of torts (which mostly involves analysis of appellate cases in the

> tort of negligence) I have not found it easy to identify good occasions for

> this.

>

> Regards,

> vb

>

>

**********************************************************

Erik S. Knutsen

Assistant Professor

Faculty of Law

Queen¹s University

Macdonald Hall, 128 Union Street

Kingston, ON  K7L 3N6

Tel:  613-533-6000, ext. 78360

Fax:  613-533-6509

Email:  knutsen@queensu.ca

http://law.queensu.ca/facultyAndStaff/facultyProfiles/knutsen.html