Image courtesy FreeImages.com/andrej troha
To really get to grips with your RPG world, you have to understand how the invented environment affects the everyday life of the inhabitants.
That’s more easily said than done.
One technique is to answer a long series of questions, progressing from the simple to the profound, as shown in my first series here at Campaign Mastery, Distilled Cultural Essence, but that series focused specifically on creating societies and cultures, and not on the bigger picture.
I’ve offered other techniques over the years, such as the one in The poetry of meaning: 16 words to synopsize a national identity, but that’s more focused on generating a broad general picture. I talked quite a lot about turning your ideas into concrete campaign elements in the course of the epic 11-part New Beginnings series, and how to create some of those ideas in the first place, but none of that really helps in assessing the impact of those ideas at the small scale of ordinary events. So there’s a gaping, somewhat swiss-cheesy hole in my treatment of the subject here at Campaign Mastery. This article aims to offer one way to plug those holes.
If you look at any painting or photograph really close up, you’ll find that it’s not an overall image at all – it’s composed of a few small details:
Part of the Campaign Mastery logo blown up about 1600 times. What looked like a straight, sharp line at an angle, isn’t it’s jagged and fuzzy, and what looked like texture elements are simply contrasts in color that fool the eye.
The original Campaign Mastery icon/logo for comparison purposes. The enlarged section is located on the upper left side, where the “C” is at its closest to the hex-side.
I talked about this a little in the discussion on Pointillism in Let’s Twist Again, part 2 of my collection of 11 types of plot twist for RPGs (specifically, in twist type 8). In this context, it means that if you really understand enough of the small details, the big picture will emerge of its own accord, shaped and filtered by campaign themes and other such overall campaign elements, because those are how you filter and process those small details. So, how to determine those small details?
Another technique for discovering the impact of the campaign world on everyday life is to live an ordinary day or week of your life and simply pay attention to everything you’re doing, then try to picture how that activity would be transformed by the game environment. Sometimes you need to translate it into some analog activity first, because the cultural, social, and technological milieu doesn’t match that of your contemporary existence.
It sounds simple enough, but it can be difficult in practice; the mental equivalent of blank page syndrome can result from being overwhelmed by the sheer quantity of activities that need to be covered, and not really knowing where to start. An alternative approach that helps get you started when this is a problem is to examine one specific but sufficiently-broad aspect of life in detail, breaking it down and thinking about the impact of the campaign reality on as many aspects of the process as you can think of.
One of the best such microcosm representations can be found in, of all places, Personal Injury Law and Compensation.
Personal Injury Law 101 For Amateurs
Personal Injury law exists to provide compensation to injured parties for the harm done by another. If someone is injured in a car accident, that person is entitled to compensation from the person who caused the accident. Because these claims can be very expensive, most vehicle registrations include a requirement for compulsory insurance to cover them. Similarly, home insurance not only protects the policyholder against loss or damage to the home, but also covers compensation claims for visitors injured on the property.
It’s always fair to say that the law lags behind social reality and technology. The admissibility of evidence, the nature and expense of treatment, and the types of injury that can be sustained are always subject to revision as technology changes, and there is always a delay or lag before the law grows to accommodate new technology.
Often, the first attempts at framing such laws are achieved by using the laws applying to another technology, one that is already understood by the legal system, as a foundation; it takes even longer for the legal infrastructure to adjust and modify the laws that seek to regulate and deal with new technology in such a way that its unique properties and characteristics are given due consideration.
A lot of the legal problems arising from recent mergers and activities regarding internet regulation stem from considering the internet to be analogous to telephone communications (and other such services) as opposed to a unique service in its own right. The legal restrictions over what can be said online about someone are rooted in the laws pertaining to print communications and take minimal account of the speed with which modern communications occur – if you invent a rumor about a celebrity and take it down an hour later, after it has been spread far and wide by social media, and publish a retraction in its place, the laws (as they stand) have a hard time dealing with the question of whether or not the celebrity has been damaged, and to what extent.
I got to thinking about this, and how it might impact on RPGs of various types.
A mechanism for redress
The first requirement is that there needs to be a mechanism for redressing injuries in the society. In most Fantasy games, there is virtually no legal protection and no means to obtain compensation other than force, often in the form of a duel. Some fantasy societies incorporate the concept of Champions who can fight on behalf of an injured or challenged party – Sparhawk is “the Queen’s Champion” in the double trilogy by Eddings, for example. Paladins are often described as “righters of wrongs”, so this puts an entirely different spin on that social class.
Or take the legend of Robin Hood – we have a corrupt administration, against which the outlaw fights. The rich, who are considered responsible for the administration that has failed the ordinary citizen, or at the very least have the property of guilt through association, are plundered by Robin Hood and the wealth stolen from them is redistributed to the commons.
In any society, there needs to be some mechanism for the redress of alleged wrongs, and it will usually evolve very quickly into something quite sophisticated and complex. But it’s normal for not everyone to be protected, or to be protected to the same extent. Such egalitarian ideals are a relatively modern invention.
In medieval times, the lower classes had relatively little protection. The Lord to whom they looked offered what safeguards there were towards those from outside his domain, and there was usually a “lower court”, “moot court” or representational system of justice that set compensations to those injured by others of similar social standing, but that was the extent of it. How you were treated by your Lord was entirely up to him – though poor standards of treatment might diminish his character in the eyes of nobles higher placed within the peerage.
Regardless of the time period or the process, the beginning step of any process of redress is the issuance of a complaint by the “plaintiff” against the “respondent” alleging that the plaintiff has been harmed and that the respondent needs to compensate the plaintiff for that harm.
Challenge or Complaint
The form of such a complaint is frequently archaic and hearkens to an earlier period. It is always highly formal. Depending on the time and place, there may be some sort of preliminary hearing or evidentiary standard that must be met, so as to discourage frivolous litigation. There are parallels between practices of different eras that recur time and again.
Before a formal challenge may be issued in a medieval setting, for example, you might need to convince someone else that you have a legitimate grievance before you can even reach the noble against whom you have a complaint in order to issue your challenge, or perhaps it is customary for challenges to be issued through third parties who themselves are put at risk if the challenge is unwarranted. A third alternative is simply the need to convince someone to hear the case; in some fictional societies, civil justice functions by both sides paying the judge for his time and attention. This is a feature of the society in The Moon Is A Harsh Mistress by Robert A. Heinlein – I don’t know where he got the idea from, or if it was completely original to him. The Wikipedia article to which I have linked suggests a similarity to the Viking Althing, but the resemblance is subtle and vague, at least in my eyes.
The point is that there is a filter of some sort that screens trivial and absurd complaints from the process, a hoop that must be jumped through, and that this is wrapped in formality and tradition.
The reasons for that formality are two-fold; the first is to serve as a reminder of the seriousness of the situation, and the second is to begin placing the complaint at arms’ length from those directly involved; once the complaint or challenge is lodged, it becomes part of the society, and the judgment becomes a precedent for subsequent decisions. In any challenge of this sort, there will be a winner and there will be a loser, and this starts the process of preparing both sides for the possibility that it could be them.
It is usually necessary to notify the person alleged to be responsible for the alleged harm directly by “serving notice” to them; you can’t normally simply hand the paperwork to a third party, no matter how closely related to the individual in question they might be. There is an inherent presumption that the individual has the right to a fair opportunity to prepare their defense, and – in truth – they usually have less time than the complainant, who will normally have a fair amount of preparation complete before they even make the allegation.
“Personal Service” can be a whole new challenge when shape-shifting and other metahuman capabilities are taken into account, or when someone can simply pop into a neighboring plane. In fantasy games, there would need to be a variety of manhunter to pursue miscreants wherever they might flee – or a change in the society that finds some other way of dealing with public liability. The first offers employment opportunities for PCs, or can have one or more PCs being hunted; the other changes the society in a different way. It’s more difficult, and requires a bit more imagination and careful thought; the first option is, quite frankly, the easy option. For most of this article, I’ll assume that the first choice is in effect.
Which means the only opportunity to look at the second choice is right now. The simplest answer is to keep the known arrangements, but to permit penalties to be awarded in absentia – which effectively replaces the “manhunters” with “debt collectors”. There might be a social mechanism similar to that of a bail bondsman who pays the victims and then chases down the parties found liable to recoup their losses, for a percentage of the payout plus a fee paid by the state, or it (more likely) would be for the percentage, from which a licensing fee has to be paid to the state. There might also need to be a legal principle that states that descendants are responsible for this type of debt if it can be shown that the guilty party has died in the meantime – but, in a world with undead and resurrection, that opens a whole new can of worms.
Another approach might be for an increase in taxation, along the lines of a mandatory insurance, in which the state collects an annual fee plus a percentage of each person’s income, holding it in trust to cover the needs of any public liability event. This is the mandatory motor vehicle insurance concept extended to cover the entire populace; failure, or inability, to pay places the noble responsible for the trust, and the wider community, at risk, and so would be treated as a criminal act. Those who fail to pay might be required to discharge that debt through public service or service to the noble. This is a relatively small and subtle change, but domino effects mean that it would ripple through the entire community.
The poor in the middle ages struggled to pay their taxes even without this added burden. It would almost certainly become accepted practice that people had to work a set number of hours on behalf of the community or the lord of the domain through which a traveler passed, but that they could buy off this obligation. This is an unusual form of national service, but it would solve the problem.
Certain occupations would represent a greater risk to the community than others – and “adventuring” would be right up there, in that respect. They would need to pay more, either in service or in cash – in advance. Of course, if they do something that benefits the community, like freeing them from demonic domination or killing the dragon that is preying on the cattle, that would be credited to their accounts in that local community; PCs would be able to pay their obligation in one district by issuing a “cheque” or “bond” indicating that the bearer need only present the claim to the last community they had helped; no cash need change hands. This would generate fame and recognition of their past deeds.
It’s worth pointing out that what’s actually happening here is that the “adventuring” role adopted by most PCs is being integrated into the social and legal fabric of the world, purely as a byproduct of the task in hand…
Superheroic campaigns are a whole different kettle of fish. I thought Marvel Comic’s invention of Damage Control, about an organization that exists purely to clean-up and repair damage from superhero battles, to be a stroke of sheer brilliance, but one that didn’t go far enough. Unless the superheros are somehow affiliated and sanctioned by the government, and subject to the same laws and regulations as their normal police forces or equivalent national organizations, they would be liable for any property damage and injuries that took place as a consequence of their activities – every supervillain fight is a potential financial disaster. If they do receive government sanction, that means that the government is also accepting that liability on behalf of the superheros – the restrictions I mentioned would be aimed at limiting that liability. Once again, the society needs to adapt to the presence of these characters in their midst.
In the current Zenith-3 campaign, I found a variant on the solution. Since this is a world in which the British Empire reigns supreme over virtually half the planet – and the other half is under the control of a mysterious Empire from China named the Mao – and the British have a legendary reputation for tolerating, if not encouraging, eccentricity, I decided to enshrine that into “law”. Registered Eccentrics are subject to less restriction than other citizens in return for the obligation to “entertain the public” with their exploits, and to provide other social services as necessary. The government sanctions their activities and hence their liabilities, and exempts them from some of the legal restrictions and obligations to which others are subject; in return, they gain licensing rights and the capacity to make money from products bearing the likeness of the individual, which raises the funds to cover their liabilities. The PCs are thus required to sign posters and Christmas cards, their headquarters gives daily public tours, they have to make a certain number of public, television, and internet appearances, they have to have a nominated charity for which they do regular work, and so on. All this provides massive opportunities for getting plotlines and PCs to intersect in time and space, and provides an endless opportunity for subplots, which was part of the idea’s appeal. (It’s perhaps worth noting that the “registered eccentrics” law was intended to cover certain celebrities and scientists who were considered Imperial Treasures worth elevating just a little bit above the law in return for funding and encouraging them to continue their services to the community; it was not intended to cover superheros. But stretching an existing law to cover a new situation is a long-standing practice, and it works brilliantly well!)
Once again, this is an example of integrating the activities expected of the PCs into the social and legal fabric of the world – exactly what you would expect to happen.
In modern cases, the complaint must be proven with evidence, facts that can be proven to a satisfactory standard. If such evidence is not available, the complaint goes nowhere.
In older times, there was less or no reliance on evidence at all; instead, there was greater reliance on the character of the individuals involved. It was the rise to primacy of science that created the assumption that something could be definitively proven as fact. Prior to that time, there weren’t “facts”, there were “truths”, and truth was ordained by religious authority and tested by scholarly debate. The very meaning of the term “of good character” was subtly different, though many of the constituents remain unchanged – a reputation for honesty and fairness, for example.
In either case, the complaint is followed by some form of investigation. This is either the gathering of evidence or the solicitation of testimony, or both. Some of this evidence/testimony is designed to prove your case, and some is designed to undermine rebuttals by the other side.
In modern major civil lawsuits, the time available for the gathering of such evidence can be months or years; without the same evidentiary standards and obligations, the delay would be days at most. Quite often an entire community would gather for the hearing of complaints and judgments, and so it was a simple matter to ask who would vouch for the character or verify an account of events; “trials” were more like a community meeting, of the sort routinely seen on The Simpsons.
Of course, if justice is determined by a duel, no real investigation is required; but the parry and thrust of sword-fighting or even the acceptance of a duel and its conduct are often referred to as an examination of the character of the participants, so even in this “court of justice” there is some parallel to this phase of proceedings.
In modern or recent-period settings, this can be the most interesting part of the story, as the longevity of the CSI franchise makes clear – not to mention almost every other police procedural of the last 50 or 60 years that isn’t essentially a courtroom drama. Investigation is basically a detective story, and that can either be the plot in itself or simply a means of getting PCs and plot together.
Futuristic campaigns often struggle to make serviceable plots from this sort of activity, due to the expectation that Forensic Science will continue to evolve. For the Zenith-3 campaign, I decided that Forensic Science had become so sensitive that the meaningful results were buried in the torrent of “noise”, forcing people to adopt more “old-school” techniques most of the time. Testing a crime scene for DNA would produce a list of samples that covered anyone who had been in that location (or even passed it by if the window was open) in the last ten years; eliminating all of them as suspects would take so much legwork that it was impractical, even assuming that you could identify them all. This lets me have my forensic “cake” and eat it too – I can have Forensics provide as much or as little assistance as the plot needs.
Superheroic campaigns, which permit all sorts of action at a distance, pose special challenges to investigators. If the murder weapon was wielded Telekinetically, the killer didn’t even have to be in the same room as the crime. Other paranormal abilities would be needed to solve the crime.
Some abilities can take all the life out of this type of activity, however, and that’s something that needs to be carefully monitored. If you can see the past, or bring it back to life somehow, contemporary mysteries become too easily solved to be viable as plots. Coming to the rescue is the convenient requirement that evidence be “legally admissible”, and the legal doctrine “fruit of the poisonous tree” even prevents cheating by discovering who the guilty party was through such means and then using that knowledge to find proof that would otherwise be admissible. In other words, there is no substitute for working through the plot from beginning to end!
Sometimes, it’s necessary for preliminary attendances at court for evidentiary hearings. These are where a judge determines whether certain evidence can be admitted or not, and is especially important where there is the possibility or even likelihood that a witness will not survive long enough to appear at the actual hearing, or for some other reason, may not be available. This stage of personal injury proceedings is new in comparison with the others being discussed.
Mitigating Factors & Contributory Actions
Criminal law is relatively straightforward; someone is either guilty, or they are not. Civil court cases and, in particular, personal injury cases, are far more complicated. There are three “fuzzy factors” that have little or no role in criminal cases, save perhaps in the sentencing phase; these are Mitigating Factors, Contributory Actions, and Shared Liability.
A Mitigating Factor is a circumstance that reduces the level of harm done through outside factors. Negligence is, as a rule, not as bad as deliberate malice; an innocent mistake is not as damaging as willful intent or the circumventing of safeguards for personal gain. Creating a risk is never as bad as having someone actually suffer harm as a result of that risk.
Any form of diminished capacity that is not self-inflicted, say by the consumption of alcohol, is usually a mitigating factor. Some respondents are leery of making any presentation regarding mitigating factors because they feel an implicit acknowledgement of guilt that can weaken their primary position of not being responsible for the harm that was caused. This inevitably leads to dense legalese of the sort that non-lawyers hate: “My client contends that he is not responsible for any harm that has befallen the plaintiff for reasons (a) through (h) in our submission to the court, and that any one of these represents sufficient cause to dismiss the complaint, and further contents that even if responsibility is somehow imputed despite these completely reasonable grounds for the dismissal of the case against him that his responsibility is minimal due to the mitigating factors listed in points (i) through (m) of our response to the submission by the plaintiff, and that in aggregate these reduce his level of responsibility to beyond any reasonable measure or standard of culpability”. Because it is necessary to present these without an admission of guilt, the entire line of argument feels “oily”, the sort of thing that a “slick lawyer” might say. It’s not direct and to the point.
In some modern societies, defendants are given the opportunity to present arguments in mitigation after a verdict of responsibility has been handed down, and the primary part of the case simply establishes that the allegations of responsibility have only proven that the defendant shares some of the blame; this is usually described as the “penalty phase” of a court case. In others, you only get one shot at influencing those rendering the verdict.
Supposedly, the judge is the jury’s guide through this thicket, specifying exactly how they are to take any mitigating factors into account through his instructions – but sometimes these can be even more complicated than the arguments pro and con as a result. Things were (and are) much simpler when such cases don’t go before a jury, because the judge or arbiter then makes these decisions for themselves; but civil cases are still decided by a jury on many occasions to ensure that “community standards” are reflected in the verdict.
Mitigating factors reflect the social beliefs of the time; in the days when slavery was accepted in North America and in other places, the owner was responsible for any harm inflicted by a slave. This was because the slave was considered property and not a person; an injury caused by a slave was the same thing as an injury produced by a horse-and-cart; you can’t sue the horse, you sue the horse’s owner.
One source of disbelief amongst the lay public in modern times is the legal principle that equates a corporation with a person. This notion of responsibility is the source of that principle, because it inherently states that a corporation can be harmed in the same way that a person can be, and that it can inflict harm and bear responsibility in the same way that an individual can. Ultimately, it’s a piece of legal trickery that ensures that corporations and individuals are (theoretically) held to the same legal standards, and furthermore, it prevents complications by having two separate bodies of law to deal with such responsibility. On the face of it, it may seem absurd, but there’s a good reason behind it.
There is a good argument to be made that what a society deems a mitigating factor, and the extent to which it is deemed to mitigate responsibility for certain actions, is a good window into the values of that society.
If there are any mitigating factors, any award, compensation, or “relief” granted to the injured party must take this into account, either as a fixed sum deducted from the payout or as a percentage reduction of the compensation.
Mitigating factors become a major can of worms in any campaign with any form of mind-control. Unless there is some reliable form of independent testing to prove that an individual was or was not mentally controlled or even influenced, the whole concept of liability except by virtue of negligence goes out the window. Is a telepathic examination legal? Are a telepath’s findings admissible testimony? I somehow doubt it. The courts would probably view any allegation of mental control as an “affirmative defense“, something that the defense must prove if they make the claim; but that virtually guarantees that there will be miscarriages of justice in which someone is mind controlled and doesn’t claim that defense. The only solution that I can see is for state-sanctioned and qualified telepathic “experts” to be legally required to examine any such claims – at who knows what cost to the telepath?
There are lots more legal minefields to traipse through in the name of plot within this umbrella. The makers of a product are liable if reasonable use of the product results in injury or loss; it is up to the courts to define “reasonable use” if the makers disputes a claim rather than settling the matter out of court, or if the settlement offer is deemed unacceptable. So if a being made of liquid attempts to use an electrical appliance, is that “reasonable use” or is product liability reduced to a “caveat emptor” situation? Can the problem be covered by an additional warning label? And how many such warning labels can a product have, anyway? “On page 327 of the product manual, the manual clearly states that elementals and other liquid beings use the product at their own risk”.
If a blender, or a microwave oven, or a mobile phone, or whatever, emits telepathic “noise” that drives a psionic character around the bend, how reasonable is it to hold the maker liable?
In the fantasy arena, how liable is a wizard for a barn that was burnt down while he was driving out a demon? Is employing a fire elemental the same thing as maintaining a public nuisance or a dangerous dog?
The other legal principle that is largely unique to civil cases is the idea that the victim can share some measure of responsibility for the harm that was done to him, and that this can diminish the responsibility of others. This is a principle that is rarely held to be inequitable or unfair; if you get hurt because you were doing something silly with a piece of equipment, the culpability of the manufacturer or owner of that equipment is obviously affected, even if they were also participating in the activity.
While the principle is generally accepted as reasonable, its application in any given case is frequently far more contentious. For this reason, police and other public services frequently have an entirely separate system of internal hearings to those of the wider community, and while this can cause friction between differing standards, it is normally a necessity. For example, consider the case of a policeman who is injured rescuing a drunk from a dangerous situation, who is also injured in the process; the policeman can’t normally sue the drunk, and the drunk normally can’t sue the police officer, and it’s not reasonable for things to be any different. A bystander who is also injured in the course of the rescue, on the other hand, has a reasonable case against the drunk and a less reasonable case against the police department, but because the service can afford to pay and a drunk usually can’t, it is not at all uncommon for the department to be sued and not the drunk.
One area where this principle has become important in recent times, for example, is the culpability of police for injuries to third parties resulting from high-speed pursuits. The finding in some jurisdictions that the police were at least partially responsible for such injuries has a disproportionate impact on the ability of the police to perform their mandated social function; at the same time, completely exempting them from such responsibility is a license for them to behave irresponsibly. So there is no simple answer to the question, and the balance between these conflicting points of view swings back and forth over time.
Other social factors can have a strong influence over these questions. It can be argued that a robust and affordable public health system coupled with an appropriate form of insurance can mitigate against the need to allocate responsibility in court in such cases, for example; so if health-care is universally acceptable and the care and wellbeing of an injured party already provided for, there will be fewer cases of litigation against the police, and the need may in fact be so low as to justify an exemption for the police forces. Similarly, a greater emphasis on the personal responsibility of the individual for their own safety shields police forces from such lawsuits.
That means that the concept of Contributory actions is just as responsive to the social mores as Mitigating Factors are, though the relationship is more indirect and changes in community values take longer to become reflected in the legal standards.
If you’re a superhero and your secret identity’s neighbor, or your girlfriend, knows it, and they get hurt in a superhero fight, how liable are you? If Aunt May needs an operation, could Spider-man sue whoever it was that made the spider radioactive in the first place?
If Uncle Harry becomes an undead zombie, can you sue the Priest who performed the funeral ceremony?
If Superman stops someone from getting killed but injures them in the process, can he be sued? (This was the basis for a highly-entertaining episode of “Lois & Clark”).
The third of the “Fuzzy Factors” is the potential for one act of harm to have many parents. Again, in criminal law, responsibility is fairly black-and-white, but in civil cases, many people can share responsibility for one outcome. A key decision in any case involving multiple parties who may be held liable in part or in whole for the outcome is whether to conduct these as separate court actions or as one big case; the first takes longer, but doesn’t bet the whole case on one bite of the legal cherry. However, there is a risk that court# one will find that the bulk of the blame should belong to party #2 (not part of that lawsuit), while court#2 finds that the bulk should belong to party #1 (not part of that lawsuit). For this reason, “separation” of the cases is usually thought to favor the respondents over the plaintiff, i.e. the people being sued, and the court will need good reason to go along with any such proposal – and the court gets to decide because the plaintiff will resist the move. (There are other disadvantages, too; for example, one respondent will get a preview of the evidence that the plaintiff has, and their arguments, and will therefore get more time to prepare counterarguments).
Shared Liability can vastly complicate the awarding of damages; the percentage to which one side is held to be liable will reduce the primary damages awarded, but there can be completely separate punitive damages awarded.
Class actions are very nearly a fourth fuzzy factor. They certainly don’t apply to criminal cases, where each act is considered in isolation as a separate offense, but in a civil case, the “plaintiff” may be a whole group of people affected by one action. The problem is that juries can get distracted by the size of the damages being sought by this “plaintiff” and fail to recognize the way in which those will get divided up.
For example, let’s say that 250 people are injured by faulty air bags, something that’s been a hot topic in the news lately. Awarding damages of $5,000,000 might seem like a lot, but the lawyers will often take a sizable percentage of that – up to 70% – because they have effectively just won 250 court cases at the same time. But let’s be more typical and say 40%. That’s the award down to $3,000,000. If all that went to the 250 people, that’s $12,000 each – when they might be facing medical bills in the hundreds of thousands. But the case isn’t limited to those 250; a class action sets up a fund from which anyone who falls into the group of individuals defined by the verdict can claim. If another 300 people come forward after the verdict to claim that they were also injured, that $3,000,000 can be split 550 ways instead of 250 – a total of less than $5500 each. I’m not 100% certain about it, but I think that this is also subject to taxes – so that might end up being only $3000.
So let’s up the scale. Let’s say that each victim is to receive $500,000, of which $200,000 will be consumed by medical expenses (on average) and $300,000 will represent 5 or 10 years of fully- or partially-lost ability to work. $30,000 is not a very big annual wage, these days. $500,000 times the 250 initial victims comes to 125 million dollars.
But if you go into court and ask for $125 million, you’re going to look very greedy. And even if you get it, there will almost certainly be an appeal because of the scale of the payout, so it might be more years before you see a cent. And even if that appeal is lost, there’s no certainty that the corporation will have that sort of money to pay – it may have been a decade since the original incident, and a lot can change in terms of profitability in that sort of timescale. And in all that time, the 250 (and maybe the 300 too) have been partially or completely unable to earn an income – many will have lost everything as a result. So the lawyers for the corporation will offer to settle for maybe $25 million, and everyone will be motivated to accept. That’s 5 times our original example payout – so each victim might end up getting $15,000 at the end of the day.
250 isn’t a very big number of victims. A modern jet can have more than 400 passengers. Millions of defective cars might have been sold. That 300 might be 3000, or 30,000. A huge payout can give each victim a pittance, and that’s the reality of class action lawsuits.
America has a bad reputation for being a litigious society, one in which huge damages get paid out in civil court cases. Class Action lawsuits are the cause, in my opinion; they accustom everyone to telephone numbers in damages, setting a standard that is also used in individual cases, give the impression that the winners get a huge windfall, and that encourages other lawsuits – and it all stems from the practice of awarding, and reporting, those payouts in aggregate rather than per victim. Such a tiny detail, but it can have a huge impact.
All of these “fuzzy factors” are on display in A Civil Action by Jonathon Harr, and in the movie of the same name starring John Travolta, both of which I heartily recommend.
Validation or Refutation of Claim
The claim has been made, the evidence heard, and someone now gets to decide on the case. There are three types of decision-makers in modern law: arbitrators, who negotiate an outcome; judges, who decide an outcome; and juries, who have to agree upon an outcome. Duels are simpler – the winner is either the first person to wound the other, or the survivor. Decisions outside of duels were simpler in older times, too – the winner was the highest ranking noble (unless a higher ranking one overruled him, such as might happen in cases of treason), but the general principle holds. When members were of equal rank, well, that was where duels came in for the peerage – assuming that a complaint to a higher authority would not yield satisfaction. Ordinary people didn’t fight duels; sometimes, the Lord decided; sometimes, an individual appointed by the Lord decided; and sometimes, especially in minor infractions, a jury of the neighbors sat in judgment. This was not a jury appointed to hear a specific case; the same jury handled all matters as part of a regular town “council” that all attended.
It was counted an honor and mark of the respect of your peers to be appointed to the Jury; these were the most honest, trustworthy, and even-handed members of the community, in the judgment of the members of that community. “Who decides” is therefore yet another window into the values of the society. However, it is entirely reasonable for a visitor of “noble rank” or “heroic reputation” to be appointed to a jury for the duration of their stay in a particular location.
There is an obvious plot opportunity for a fantasy campaign here: PCs stay in an inn, a crime is allegedly committed or an accident occurs, and the PCs – because of their reputation – get added to the jury.
Compensation & Costs
Compensation comes in many forms. The modern form is financial, and is divided into two forms: restitution and punitive damages. Older forms were blood, material goods, or even the life of the guilty. Exile is rare but not unheard of; labor on behalf of the injured party was also acceptable in the past, as was removal of access to civil amenities, and fines to the community. Public apologies or retractions are also valid for some forms of harm. In theory, at least, juries, judges, and arbitrators are limited only by their imaginations as to the form that compensation may take. In cases of unfair dismissal, it’s not uncommon for the court to order that the person be given their position back, and sometimes they can also require that this be made retroactive, taking effect on the date of dismissal – so that the person unfairly dismissed from their position receives back pay.
The goal of restitution is to undo the harm done to the maximum reasonable extent that financial recompense is able to achieve. That requires whoever decides the case to put an economic value on the harm done, and then to apply the “fuzzy factors” to determine how much of that burden an individual “person” would be responsible for.
Restitution is sometimes simple and sometimes incredibly messy and – once again – responsive to social attitudes, as well as to the medical capabilities of the society. This is especially true when intangible harm has to be valued, or when the value of a life lost has to be calculated. Despite this, and the notoriety in which some awards for “pain and suffering” are sometimes held by cynical attorneys and members of the public, there generally isn’t a lot of dispute about these awards; there are well-established if blinkered and biased guidelines to follow that are generally accepted by all sides.
Even in medieval times, there was an accepted list of offenses and standardized restitutions; while a jury might vary these awards in unusual cases, this was not common.
The opportunities for court-ordered restitution can assume an entirely different scale when unusual abilities are available. The Wizard whose unseen servant leaves a bucket where someone can trip over it might be ordered to cast spells to assist the injured, for example. A superhero might be ordered to rebuild a bridge, or fly someone to and from medical treatment for an injury sustained in a superhero battle.
These are supposed to rap the guilty party over the figurative knuckles in order to dissuade them – and others – from similar offenses in the future. These days they are normally financial, and sometimes based on a percentage of the annual income of the responsible party, or on their net worth. Until some jurisdictions began legally capping these awards*, the sky used to be the limit when it came to punitive damages. As a result, these are often where the really disputable parts of a verdict can be found.
* at least, that’s been happening here in Australia; I can’t speak for the rest of the world.
In ages past, punitive damages could take a more direct form, and the term “punitive” meant far more literally. Everything from a certain number of lashes in a public flogging to time in the stocks could be ordered. Of course, in a duel situation, the ultimate punitive finding was death.
In a fantasy environment, it is entirely reasonable for each party in a duel to be required to provide healing to the winner if the duel is to the death, and the rules of dueling would prohibit healing potions during the contest, in fact, magical intervention of any sort would be prohibited.
But there can be thornier issues: what happens if a duel to the death is undone by a resurrection? Or permits the loser to be raised as an undead? Can those subsequently injured by the undead sue the winner of the duel?
New Types Of Injury
This is where things get really interesting. Magic. Psi. Karma. The Soul. Transfigurations and Transformations. Most genres of campaign will incorporate one or more new types of injury, and rules within the existing framework of law and custom will have evolved to accommodate these new kinds of harm. That requires ways of proving that the harm actually occurred, something that I touched on earlier, and some means of establishing the value of the injury.
Being bitten by a Vampire is obviously a criminal assault; but can the family of a victim claim compensation in addition to the criminal penalty? If a man extends his life through “unnatural means,” can his heirs claim that he is denying them their due inheritance?
If a superhero loses the ability to fly because of a supervillain’s device, can he sue the supervillain?
If capabilities exist that are not recognized by the laws that we’re used to, the laws will have to evolve. Laws are a reflection of the societies that create them – though societies evolve far faster than the law does. The inevitable result is periodic waves of radical change to the law as it suddenly catches up. Sometimes, the law can actually get ahead of, and drive, social change; this is true of the recent ruling regarding same-sex marriage by the US Supreme Court. Being gay has been acceptable within society for some time; but this legal milestone has undoubtedly triggered another such wave of progress.
I was a big fan of the original Law And Order because it wasn’t afraid to tackle big issues, such as Hate Crime Legislation, and the way laws could be manipulated to achieve purposes far removed from their makers’ original intent. Changing a law, or changing a society, has a domino effect; it ends up altering far more than originally thought.
Completely reinventing society to accommodate the conventions and capabilities of your games’ milieu is too much work for one person to do. The best you can hope for is to tip over the first few dominoes and be aware of the issue as events transpire within your campaign. Personal Injury and Compensation law is a great doorway into these changes; it makes an excellent “first domino”.
That domino, or some alternative choice, has to be knocked down; verisimilitude demands it. Your most important task is to ensure that your campaign doesn’t bog down, that you make the choices that add to the entertainment value and the plot options open to you at the same time as satisfying that need. There’s ample scope and opportunity to do so; and that’s what I hope readers will take away from this article.