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America is the most litigious nation on earth. American jurisprudence is patterned on British “common law” and follows much the same rules as in our colonial days. Concepts such as “innocent until proven guilty,” right to a jury trial of one’s peers, right of appeal, and the difference between civil and criminal standards (“preponderance of the evidence” versus “beyond the shadow of a reasonable doubt”) and all those Latin phrases (res gestae, res ipsa loquitor, stare decisis (reliance on precedent) and habeas corpus (a writ requiring appearance before a court) and rules such as the ability to plead the Fifth Amendment to the Constitution are blessings of our judicial system. Should these rights be suspended, we are in trouble.

The best part of American jurisprudence (stare decisis notwithstanding) is that our courts can change their minds on certain issues. If that were not the case, the infamous Dread Scott pre-Civil War Supreme Court decision would still permit atrocities in the name of the law. Consider that in the 1960s most states had “contributory negligence” laws that would bar a tort claim if the plaintiff was one iota at fault; today only a small handful of states retain that rule, the rest using some form of comparative negligence tort rules. That’s why claim investigators’ understanding of the law remains so important if the spirit of the law is to be attained.

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