After the Judgment

Abstract

Tort judgments - whether entered after settlement or a trial - have traditionally been viewed as marking the end of tort law’s role in the plaintiff’s life. Yet developments over the past 25 years have rendered this view obsolete. Until several decades ago, tort judgments almost always resulted in a lump sum payment reflecting a jury’s findings or the parties’ assessment of the amount of damages incurred by the time of settlement as well as provable future damages. Aside from minors (for whom monies were deposited into an interest-bearing account until the minor reached adulthood and received the full sum), the non-taxable tort award was the plaintiff’s to spend or invest as he or she chose. Now, however, payment methods other than the lump sum are common for both minors and adults. Legislation in many states allows defendants to request an order for periodic payment. In settlement contexts, parties often make use of structured settlements—a package consisting of a present payment and a structured series of future payments. In addition, settlement trusts are more common now. These and other changes mean that the hand of tort law often extends beyond the judgment and affects the timing of, structure of, and decisionmaking about tort payments. This Article explains this shift and the reasons for it, and identifies and explores some of the most important questions it raises. These questions include the efficiency and justice of mandated and voluntary payout methods in various categories of cases; the proper approach for plaintiffs with diminished (or allegedly diminished) decisionmaking capacity; and the role of the lawyer as to both competent and diminished capacity clients.