Section 6.  Dad, I am going to sue you!

 

There is a special phenomenon in American society.  When there is an accident or a civil case demanding compensation, the first question asked by the lawyer is not "Who did what?", and not "Who is right and who is wrong?" but, "Who has insurance?"  Here I tell two true stories.

　　

The mother of a friend came from Hong Kong to tour the United States. Before she started the trip, I had warned repeatedly that insurance should be purchased for her. My friend's mother was over sixty five years old. Many insurance companies refused to accept her as insured, so my friend gave up, comforting himself saying, "chances are nothing will happen!" However, world affairs are often so unpredictable. The mother traveled for three weeks.  On the day she was rushing to the airport to fly back to Hong Kong, she fell down in the home of the relative and was taken immediately to the hospital. The hospital said that the patient did not have insurance and had no asset in the United States, so they required the relative to guarantee the medical expenses. As the fall was very serious, breaking the leg, an operation was needed. Two weeks in the hospital later, the medical bill came in close to fifty thousand dollars!

 

The relative then suggested to my friend, "Fifty thousand dollars!  The amount is so huge.  It is really a disaster for no reason.  Why don't you sue me?  It is because my house is insured.  If the lawsuit results in a judgment finding me liable for the fall of the mother in my house, the insurance company may have to pay her medical expense! Of course, my future insurance premium may increase".  The friend naturally would not sue the relative, who was hosting the mother.  The mother fell down, and then sue.  Does it make sense?

 

This story reflects the "insurance culture" and "law culture" in the United States. In many instances they go beyond "human relation morality" and "personal relation ethics". The relative of my friend was familiar with American culture and volunteered to be sued as defendant because in the United States, being sued like that did not mean he was a bad person. And there was no problem with "face". It was just business and not personal.  However, from the perspective of Chinese culture, if my friend really sued for damages, the relative would no doubt castigate his entire family as having no conscience and they are returning a favor with a stab in the back.

 

Another is an extremely sad story. A lady from Hong kong came to visit the United States for a year for work purposes. During vacation her husband brought their child to visit. They rented a car. The husband was driving. The family of three came to a scenic area.  Perhaps it was due to unfamiliarity with American road condition, they had an unfortunate accident on a mountain road. The husband driver sustained only minor injury, but the wife on the passenger side died. The son was unconscious. The doctor believed that even if the son's life were saved, it would be a very long healing process;  it was unknown whether the brain had suffered permanent injury.  The devastated and guilt ridden husband was totally unable to do anything other than looking after the son. He was completely dependent on good friends to manage affairs for him.  

 

His friend asked for opinions from different lawyers. They all believed that the death of the wife was of course unfortunate, but the problem was that the injury of the son and future medical expense would be enormous. They all suggested that his son hired a lawyer to sue the father who was driving.  One ground was that he caused the accident and the injury of the son so there was a claim for damages. The second was that the accident caused the death of the mother, and the son was entitled to compensation for mental distress and compensation for his education. Why sue the father? It was because the father had purchased insurance when he rented a car, so suing the father is actually targeting the insurance company. The client and friends from Hong Kong heard those suggestions and were quite surprised and disapproved. One of the friends asked me for my opinion. Although I was familiar with Chinese culture, I had to say, "This is the most rational approach, and is the general practice in the United States."

 

Civil litigations come in so many different forms and have numerous changes. During a litigation, it is inevitable that factors such as gratitude, resentment, love and hate get involved. But basically a litigation is conducted according to law and reason, and not involved with personal feelings.  If this point is understood, you will not break out into heavy condemnation when you hear the following story.

 

A father was celebrating his birthday and hosting a banquet at home. The sons and daughters all came to the dinner and had a good time. The son drank a little bit too much and on his way home his car hit the light post; he was injured. The son should never have been drinking and driving. After drinking and then had an accident and injury, he was very lucky not to have been seen by the police and given a ticket. You would think that his getting compensation was out of the question, right? But his American lawyer took advantage of the appropriate case precedent and "without any leniency" sued the father on behalf of the son. The reason given was that the son was drinking in the home of the father, and the father knew that he would be driving home after drinking but did not restrain the son, and in the end "led" to the son's accident. Why would the son sue the father?  It was because the father owned a home,  With a home there had to be insurance. If the son wanted compensation, the only option was to get the father involved.  The true target was the insurance company.

 

The son would say to the father, "Sorry Dad, I am going to sue you!" In China, if a father hears his son speak this way to him, he would have been outraged. But this kind of situation happens often in the United States, and the father would not feel that the son had done anything treacherous and would not become extremely angry. On the contrary, sometimes the father may testify happily in court that he had committed the wrong in order for the son to obtain compensation from the insurance company.

 

The truth is that even in the United States of twenty, thirty years ago, it was also not possible for the above story to happen. To be drunk and drive and carelessly injure oneself is a self inflicted suffering. On what basis should someone else pay you compensation? Not to mention your own father? However, in today's America, legal and social concepts have already departed from common sense. Under the "insurance culture," there is only one principle. If I am unfortunately injured, someone should be responsible, whether he is the doctor, lawyer, a parent, a friend, a spouse, whoever is insured is okay". This has nothing to do with proper human relations. As the saying goes in the Godfather movie, "It is only business". 

Section 7.  The Interesting Small Claims Court

 

In the structure of the California courts, the lowest level is the small claims court, but it actually handles some most interesting and human cases. The small claims court has the closest relation with the general public because it helps the small people solve some small amount dispute without the representation of an attorney.  It is worth our introduction here.

 

The cases involving small amounts of money are numerous in any place. For example a friend borrows one thousand dollars from you and does not repay, or a person damages your home and agrees to compensate you for two thousand dollars but does not carry out, or you have done work for someone but he does not pay you, and so on. To resolve these disputes efficiently, the small clams court institutes a very simple procedure.  

 

First, small claims court does not allow a party to be represented by a lawyer. Second, the rules of evidence are not applicable. All the procedure is conducted informally for the convenience of the common people. As there is rapid increase of criminal and civil cases which are more than the human and material resources of the court can handle, the court often hires some senior lawyers willing to serve to act as "Judge Pro Tem" to replace the judge in small claims court.

 

The small claims court requires every case to be handled by the party personally. For example, someone owes you two thousand dollars. You only need to first go to the court to fill out a form and pay a small filing fee; the court immediately gives you a court date for trial and also sends the summons to the defendant. On the day of the trial, the plaintiff and the defendant must appear in person. Both side can bring their own evidence (such as promissory note, an invoice, etc.) and witness. Or you can bring a friend to interpret.  (generally in civil cases, if an interpreter is needed for a procedure, the interpreter that is hired must be a professionally and officially qualified interpreter). The judge will conduct the questioning.  With the court's permission and supervision, both sides may cross examine.  As most cases involving small claims are not too difficult, the trial process is very short.  Quite often the court announces the decision immediately.

 

The cases handled by the small claims court may not involve very much money, but the basic principles and procedure are not too different from bigger cases. Since lawyers are not permitted, the client must prepare his case fully.