Second-Best Justice: The Virtues of Japanese Private Law

Second-Best Justice

Second-Best Justice

The Virtues of Japanese Private Law

J. MARK RAMSEYER

THE UNIVERSITY OF CHICAGO PRESS

CHICAGO & LONDON

J. MARK RAMSEYER is the Mitsubishi Professor of Japanese Legal Studies at Harvard University Law School.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2015 by The University of Chicago

All rights reserved. Published 2015.

Printed in the United States of America

24 23 22 21 20 19 18 17 16 15 1 2 3 4 5

ISBN-13: 978-0-226-28199-5 (cloth)

ISBN-13: 978-0-226-28204-6 (e-book)

DOI: 10.7208/chicago/9780226282046.001.0001

Library of Congress Cataloging-in-Publication Data

Ramseyer, J. Mark, 1954– author.

Second-best justice : the virtues of Japanese private law / J. Mark Ramseyer.

pages cm

Includes bibliographical references and index.

ISBN 978-0-226-28199-5 (cloth : alkaline paper) — ISBN 978-0-226-28204-6 (ebook) 1. Civil law—Japan. 2. Liability (Law)—Japan. 3. Actions and defenses—Japan. I. Title.

KNX500.R36 2015

346.52—dc23

2015002788

♾ This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of Paper).

For Jenny, Geoff, and the BPPJH

As of 2013, the US population was about 307 million. The Japanese population was 128 million.

$1.00 US equaled 118 Japanese yen in January 2015, 87 yen in January 2013, 93 yen in January 2010, 103 yen in January 2005, and 105 yen in January 2000.

Contents

Acknowledgments

CHAPTER 1. Doing Well by Making Do

CHAPTER 2. A Tort System That Works: Traffic Accidents

CHAPTER 3. A System with Few Claims: Products Liability

CHAPTER 4. Few Claims, but for a Different Reason: Medical Malpractice (I)

CHAPTER 5. Medical Malpractice (II)

CHAPTER 6. Wrong but Predictably Wrong: Labor, Landlord-Tenant, and Consumer Finance

CHAPTER 7. A Second-Best Court

CHAPTER 8. Conclusion

Notes

References

Index

Acknowledgments

Indirectly but crucially, I received the ideas in this book from my friends. I received some of the ideas from the books and articles they wrote. I received the rest from the wonderful conversations with them over the course of the last far-too-many decades. I thank them for all that they did to make this project possible. Everything worthwhile in this book comes from my friends; the rest is mine.

More directly, many of these friends read and offered comments on the chapters in this book, and on the articles that formed the basis of those chapters. In alphabetical order, they include Jennifer Arlen, Wered Ben-Sade, Omri Ben-Shahar, Stephen Burbank, John Campbell, Yun-chien Chang, Richard Epstein, Eric Feldman, Thomas Ginsburg, John Goldberg, Mark Grady, John Haley, Temple Jorden, Louis Kaplow, Ryotaro Kato, Daniel Kessler, Daniel Klerman, David Law, Robert Leflar, Mark Levin, Salil Mehra, Tom Miles, Curtis Milhaupt, Yoshiro Miwa, Sam Peltzman, Silviu Pitis, Dan Puchniak, Eric Rasmusen, Mathias Reimann, Marc Rodwin, Frances Rosenbluth, William Sage, Chiaki Sato, Steven Shavell, Holger Spamann, Kathryn Spier, Alan Stone, Frank Upham, Mark West, and Norma Wyse.

I learned much from the chance to present the ideas in these chapters at stimulating workshops. In alphabetical order, the venues include the following: American Law and Economics Association, Bar-Ilan University, Conference on Empirical Legal Studies, Duke University, Emory University, Fordham University, Harvard University, University of Chicago, University of Michigan, University of Pennsylvania, University of Tokyo, and Washington University, St. Louis.

I received very generous financial assistance from the Faculty of Law at the University of Tokyo; and the East Asian Legal Studies Center, the John M. Olin Center for Law, Economics, and Business, and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, at Harvard Law School. I received thoughtful and always considerate support from Deans Elena Kagan and Martha Minow.

I wrote much of this book while under the gracious and kind hospitality of the University of Tokyo Law Faculty.

On US medical malpractice law, I received excellent research assistance from Lindsey Beckett.

I published earlier versions of some of this book in several fora. In each case, I thank the copyright holders for granting permission for their use here: Bottom-Feeding at the Bar: Usury Law and Value-Dissipating Attorneys in Japan, in Wulf A. Kaal, ed., Festschrift zu Ehren von Christian Kirchner: Rect im Oekonomischen Kontext (Tuebingen: Mohr Siebeck Tuebingen, 2014), 135–58; Liability for Defective Products: Comparative Hypotheses and Evidence from Japan, American Journal of Comparative Law 61 (2013): 617–56; Talent Matters: Judicial Productivity and Speed in Japan, International Review of Law and Economics 32 (2012): 38–48; The Effect of Universal Health Insurance on Malpractice Claims: The Japanese Experience, Journal of Legal Analysis 2 (2010): 621–86; The Effect of Cost Suppression under Universal Health Insurance on the Allocation of Talent and the Development of Expertise: Cosmetic Surgery in Japan, Journal of Law and Economics 52 (2009): 497–522; Universal Health Insurance and the Effect of Cost Containment on Mortality Rates: Strokes and Heart Attacks in Japan, Journal of Empirical Legal Studies 6 (2009): 309–42; and Do School Cliques Dominate Japanese Bureaucracies?: Evidence from Supreme Court Appointments, University of Washington Law Review 88 (2011): 1681–711. With Professor Eric B. Rasmusen, I coauthored The Case for Managed Judges: Learning from Japan after the Political Upheaval of 1993, University of Pennsylvania Law Review 154 (2006): 1879–930, the basis for part of chapter 7. Professor Rasmusen very graciously gave permission to use some of the material from that article in this book. Figure 2.3 in chapter 2 is reprinted with the permission of Tokyo District Court Civil Traffic Accident Litigation Research Committee (Tokyo chisai minji kotsu sosho kenkyukai), and the K.K. Hanrei Times Sha.

CHAPTER ONE

Doing Well by Making Do

I meet a lot of lawyers in this business.

And for the most part, Japanese lawyers talk about the same things American lawyers do. Like American lawyers, they talk about their families. They talk about their colleagues’ families. They add details about their colleagues’ extramarital affairs. They complain about the compensation that their rival partners negotiate.

They talk about the law too. They talk about new statutes. They talk about politically charged cases. They talk about opinions they think are wrong. They gossip about corrupt politicians.

But some topics over which American lawyers obsess, Japanese lawyers never touch. They never wonder whether they can successfully game a state judge in a dubious product liability claim. They never try to convince juries to award damages their clients did not suffer. They never wonder whether to contribute to a judge’s reelection campaign.

On many dimensions, the Japanese courts work far better than the courts in the United States, and the topics Japanese lawyers never touch over late-night drinks reflect some of the reasons why. At root, the Japanese courts do well because they try merely to make do. They do not aspire to perfection. They aspire only to good enough. And that is the subject of this book.

* * *

Japanese file many fewer lawsuits than do Americans, and they file fewer suits for the same reasons no one would have this conversation in Japan. Those reasons lie at the heart of this book on tort disputes.

I take as my implicit focus the contrast in litigation between the United States and Japan, and I take as my explicit focus the Japanese half of that contrast. On litigation in the United States, readers can turn to an enormous English-language library. I offer here a book on Japanese litigation. Implicitly, I write it to explore the US-Japan difference. Explicitly, I concentrate on Japan—and describe the way Japanese parties, lawyers, and judges handle some of the disputes that otherwise plague wealthy modern capitalist societies.

People have long speculated about why Japanese file so few suits, but the content of their speculation has shifted over the years. In the 1960s and 1970s, they argued that Japanese filed fewer suits because they lived in a culture that discouraged them from asserting their claims—because it simply was not something good Japanese did. The argument has largely disappeared. In part, it disappeared because Japanese do indeed assert their claims; they just do not assert them in court. And in part it disappeared because the argument usually gave circularity a bad name: explaining how people behave by citing their culture, while defining their culture by how they behave is not—as Talcott Parsons is said to have told class after class of sociology students—terribly informative (Geertz 1973).

Since the 1980s, scholars have tended (only tended, the practice is not universal) to argue instead that Japanese file fewer suits because their legal system does not work. American scholars are not the only ones to make the claim. Japanese law professors make it routinely, too. Would-be plaintiffs in Japan face barriers across the board, they argue: the courts are too slow, crucial information is hard to obtain, and lawyers are expensive. They face other barriers specific to various legal fields: judges may impose too high a standard of proof or the statute may make impossible demands.

The finger pointing goes in the wrong direction. Japanese do not file fewer suits because their legal system does not work. It works just fine. Courts are not slower than those in the United States. Information is not harder to obtain. Lawyers are not more expensive. Instead, we Americans file more suits because our system works so badly. Indeed, it works so badly that attorneys can make a living—a good living, at that—filing claims against firms with little evidence of wrongful conduct at all. File suit, and hire an expert to discover a wrong. Were the suit to go to trial, the plaintiffs would probably lose. But one cannot be sure, and the road to trial is long and paved with one toll charge after another. All too many firms find it cheaper just to pay the lawyers to go away.

Pay them they do, and the attorneys live to file again another day.

* * *

Maybe we try too hard. Maybe if we tried to do a bit less, we could accomplish a bit more.

Maybe our problems result from trying too hard to offer a perfect legal system. Japanese do not expect as much of their courts. They do not aspire to run a perfect system or to offer perfect justice. To be sure, interview a law professor, a judge, or a TV talk-show host and he will likely talk long and maybe even eloquently about his passionate commitment to truth and equity. But the government does not run a system that embodies any attempt to offer the best judicial system possible. It runs a system designed merely to make do.

Economists call it the theory of the second best (Lipsey and Lancaster 1956). If something (the cost of the courts, e.g., or the inability of real-world judges to reconstruct the past) prevents us from obtaining exactly what we want on one dimension, sometimes we do better not to try to come as close as we can to that ideal. Sometimes we do better to scale back our hopes on other dimensions, too.

Richard Epstein and Douglas Baird (Baird 2009, 13; Epstein 1995) recount a more intuitive version of the principle and attribute it to their late University of Chicago colleague Walter Blum. Blum’s law, they call it: In law, 95 percent is perfection. Sometimes, getting a problem mostly right gives better results than trying to get it exactly right. The difference between mostly and exactly right is not only the institutional cost—though those costs can be huge—but also the risk that the extra ambition will produce a result that is flatly worse.

Our American legal system illustrates the phenomenon in spades in litigation over those private wrongs that I take as the focus of this book, wrongs we call torts—think barroom brawls, for instance, or traffic accidents, the exploding television set (a genre we call products liability), and the operation on the wrong knee (medical malpractice). In many ways, in American courtrooms we adopt rules and procedures that imply we aspire toward 99 percent—and reap disasters. Had we made do with Blum’s 95, we might have earned better results all around.

This contrast between mostly right and exactly right explains much of the contrast between US and Japanese litigation. To be sure, it does not explain all the contrast. It explains much, but in the chapters to follow I also detail other reasons for the contrast. Products liability litigation in the United States, for example, is also shaped by the fact that some state judges are elected, encouraging extortionate litigation with the ballot box in mind. Medical malpractice litigation in Japan is shaped by the way the Japanese national health insurance reduces the number of sophisticated state-of-the-art procedures that generate malpractice claims.

Perhaps an example of the difference between mostly right and exactly right would help. With even routine disputes like fatal traffic accidents, we in the United States run trials in ways that make it hard for the people involved to predict what will happen. Fact finding, for instance, we assign to juries. Rather than to a professional who has seen it all before and whose past behavior lawyers can investigate, we assign the job to novices—and let them decide (almost) whatever they will.

We adopt this largely unsupervised approach (cull six people from DMV rolls, and take whatever you can convince them to give you—my own words) in the name of individualized justice. Give all claimants the opportunity to tell their peers about the indignities they suffered and the injuries they sustained. Instead of assigning the job to a tired and cynical bureaucrat (called a judge), assign it to men and women without a professional bias (our jury of our peers). Rather than use evidence of what usually happens in similar situations, ask these ordinary men and women to consider each conflict afresh.

This devotion to individualized justice brings at least three pernicious effects. First, it makes it hard for a quarreling pair to stay out of court. Trials are expensive. All else equal, people would prefer to avoid them if they could. If they can agree about what a judge would do, they can indeed avoid them. Rather than litigate their fight, they can settle by reference to what a judge would say if they asked him.

Unfortunately, the use of juries and the focus on the particularity of each dispute make outcomes less predictable—and when outcomes are unpredictable, people find it harder to settle. To cut a mutually acceptable deal, they need to agree about what would likely happen if they litigated. Plaintiffs will settle if a defendant will pay at least as much as they would obtain (net of what they expect to pay their lawyer) in court. Defendants will pay if a plaintiff will take no more than what they would owe (including what they would pay their lawyer) in court. If the two parties hold similar estimates of the litigated outcome, they can settle and pocket the amount they would otherwise pay their attorneys. If they agree about what a judge would likely say if they asked him, they need not bother to ask at all.

When outcomes are unpredictable, the odds increase that the two parties will hold (incompatibly) optimistic views of the litigated outcome. If that happens, the plaintiff will demand more than the defendant would ever pay. The defendant will refuse to pay even the least the plaintiff would ever accept. Lacking a window for settlement, the parties will have no choice but to litigate.

Second, in some cases the American system introduces a distinct local bias. Juries in some counties famously favor local plaintiffs over out-of-state defendants. In turn, lawyers fund a massive industry locating these counties. Because our procedural rules mostly let plaintiffs sue large corporations anywhere they like, lawyers file suit in the most biased county they can find.

Although most defendants in traffic accidents are local, the defendants in products liability claims are often out-of-state firms. In effect, if an enterprising lawyer can find a plausible local victim in a plaintiff-friendly county, he can sue the out-of-state defendant and reap a windfall. If he can aggregate multiple claims through procedural devices like the class action (yet another example of the American insistence on getting matters exactly right and insuring everyone a day in court), he can reap still more. Since the aggregated claims expose even big firms to the risk of bankruptcy, the firm may pay even attorneys with the weakest claims to desist.

Third, in some classes of cases the cost of trying to get it exactly right can be particularly pernicious. Take medical malpractice. Although juries are clueless about medicine, we ask them to decide whether a doctor acted with appropriate care in arcane, high-tech procedures. Because we want to offer everyone a full recovery, we let plaintiffs prove a victim’s pain and suffering. And because we want to give everyone a chance to prove his case, we let plaintiffs hire physician experts to invent stories about why they should recover amounts larger still. The collateral consequences can be huge.

Those consequences go beyond the recovery in the individual case. When we let plaintiffs extort massive sums from manufacturers, sometimes the firms take the products off the market. When we let them extract unwarranted amounts from physicians, sometimes the doctors leave the state.

* * *

Japanese courts do well by making do. They adopt little of this American individualized approach. Instead, they follow rules and procedures that suggest someone took seriously Blum’s rule and decided to accomplish more by attempting less.

Japanese judges do not pretend to offer the level of particularized inquiry that we expect in American courts. In traffic accidents, they apply simple and public formulae to calculate a victim’s damages. They publish charts that explain the relative fault of the two parties in standard accidents. We do not live in Lake Woebegone. Most real-world victims are about average, so judges mostly award the damages and apply the rules that would be appropriate to the average case. Compensation is not perfect, and neither are the resulting incentives. But rather than get the numbers exactly right, they adopt strategies that are mostly right—and stop the inquiry.

Because so much of what a Japanese judge will do is clear at the outset, the fraction of cases where the two parties are both optimistic about their chances falls. With less mutual optimism, the parties more often agree to an out-of-court settlement. In the process, they save the amount they would otherwise pay their lawyers.

I illustrate these principles with tort disputes—the focus of this book. Traffic victims file many fewer suits than they do in the United States, but they do not eat their losses (chap. 2). Instead, they file demands against the wrongful driver. Those drivers then pay the victims out of court. They pay amounts that track the judgments the courts would impose if they refused to settle. They settle, in short, in the shadow of the litigated outcome.

Japanese courts take the same concern for uniformity and predictability to products liability and medical malpractice disputes. They apply no aggregation rules (class actions) for small claims. This obviously reduces the ability of a minor claimant to recover, but it also limits the ability of unprincipled lawyers to use fraudulent claims to extort settlements from risk-averse manufacturers.

Japanese litigate fewer products liability claims than do Americans (chap. 3)—and the standardized tables from the traffic accident jurisprudence explain much of that story. Yet, although they also file fewer product liability claims out of court, they do not live with uncompensated wrongs. They file few claims because modern products are safe and defective products cause few injuries. Americans file more claims because American courts sometimes reward plaintiffs who file fraudulent claims and rarely punish their lawyers for facilitating the fraud.

Japanese also file fewer medical malpractice claims (chaps. 4 and 5)—and again the standardized tables play a part. But Japanese also—again—file fewer claims out of court. They file fewer malpractice claims because they suffer fewer injuries caused by malpractice. They do not suffer less malpractice because they enjoy better medical care. They suffer less malpractice because they have worse medical care. The reason for the contrasting litigation patterns in medical malpractice, in other words, lies entirely outside the law of malpractice—and instead in the health insurance system.

Japan maintains a national health insurance that dramatically reduces the level of care Japanese receive. To keep costs low, it reimburses complicated and sophisticated modern procedures at relatively low levels. Japanese doctors respond by focusing their practice on the simple routine procedures reimbursed at the relatively higher levels.

Whether here or in Japan, malpractice claims stem from the most complicated, sophisticated, high-risk procedures. Patients do not file claims unless there is an adverse event, and (by definition) adverse outcomes result more frequently from high-risk procedures than low. What is more, ordinary human failings (e.g., a wandering mind) will more likely constitute negligence when the doctor is performing heart surgery than when he is prescribing a drug for asthma. The national insurance cuts the number of sophisticated, complex procedures—and, in the process, cuts the number of malpractice claims patients file.

Japanese judges do make mistakes, sometimes serious (chap. 6). Given their populist sympathies and lack of economic training (a function, in turn, of university structures), they sometimes choose rules that let a claimant recover ex post, at the cost of slashing aggregate social welfare ex ante. American judges make similar mistakes, of course. But the details of the mistakes differ. Japanese judges make it hard to discharge workers—slashing the incentive of employers to hire. They make it hard to evict tenants—slashing the incentive of landowners to provide rental housing. They let borrowers sue to recover excessive interest on consumer loans—slashing the incentive of finance companies to lend to the middle class.

Even in their mistakes, however, Japanese judges make them predictably. Once courts adopt a rule, judges enforce it: ironically perhaps, precedent binds more tightly in civil-law Japan than in common-law United States. The same predictability that works so well in fields like traffic accidents can magnify the effect of mistakes judges make in others. Granted, the parties can sometimes mitigate the pernicious effect of a rule by taking it into account in their contract. Even when they cannot do that, they can at least use its predictable character to settle their dispute out-of-court. As Richard Epstein (1995, xii) put it, permanence and stability are the cardinal virtues of the legal rules that make private innovation and public progress possible.

Japanese courts maintain this uniformity and predictability (with both its virtuous and dysfunctional effects) by ruthlessly controlling their judges (chap. 7). Japanese law graduates join the courts at the start of their career. In joining, they enter a tightly run bureaucracy. How well they do—the cities where they work, the posts they hold, and the pay they earn—depends on how highly their administrative supervisors (themselves also judges) evaluate their work.

Those supervisors reward productivity and predictability. In response, Japanese judges tend to work hard and follow precedent. The uniformity and predictable character of the legal system follow. On the one hand, this produces a set of courts without flamboyantly brilliant jurists. The Japanese courts mostly lack the likes of Felix Frankfurter, Richard Posner, Benjamin Cardozo, or Learned Hand. On the other hand, the uniformity and predictability also minimize the eerily loony character of American torts. Manufacturers do not leave industries because of liability; obstetricians do not leave prefectures because of malpractice premiums; and automobile passengers do not obtain one million dollar–plus judgments from McDonalds over coffee they spill in their laps.

* * *

American courts set high goals and only haphazardly deliver: they aim for 99 percent, but sometimes accomplish very little. Japanese courts do well, by making do: they aim for 95 percent and mostly deliver that for which they aim. They hire capable professionals to handle adjudication: this is not the place for the jury of one’s peers or of state-by-state experimentation. They tell those professionals what to do: not only do they publish precedents but they also publish careful, detailed principles about how to resolve the common questions that judges encounter. And they monitor those professionals throughout their career: this is not the place for the independent judge who does what he thinks best.

The result is a system that gives clear rules for generous recoveries. Stop by a bookstore and a college-educated plaintiff can buy a couple of books that will explain what he can expect from court. The rules are detailed, but clear and sensible. A college-educated defendant can do the same. Once the two have this information, they can settle out of court. Plaintiffs will collect standardized, uniform amounts, but these will be generous amounts and plaintiffs will collect them without paying much to a lawyer. Defendants will avoid the legal fees as well.

Call it standardized, homogenized justice if you will. For the most part, it compensates victims uniformly, predictably, and cheaply.

CHAPTER TWO

A Tort System That Works

Traffic Accidents

Traffic accidents matter.

Traffic accidents matter both because they are so profoundly ordinary and because they can be so devastatingly tragic. They touch the lives of most people and destroy the lives of some. They are common; most are minor, but a few wreck cars, ruin careers, and kill. Traffic accidents matter to ordinary men and women because they can be some of the most catastrophic events in their lives.

Traffic accidents matter in a way that captures a basic contrast in the way that the American and Japanese legal systems operate. When a distracted driver hits a cyclist in the United States, his wife will visit a law firm. Sometimes she will visit a courthouse. Rarely will she take their dispute through trial. She will almost never see the driver outside the courthouse. Before she and the driver settle, they will have retained lawyers, gathered evidence, and filed papers in court. Before they settle, they will have burned enormous piles of money.

In Japan, a dispute over an accident will usually take a different course—and the people affected will burn substantially less money. One Sunday fourteen years ago I left our house in Tokyo on my bicycle. I remember the early minutes of the ride, but nothing after those first minutes until I woke up in an ambulance. The next two weeks I spent in emergency care. At that point, I did consult a lawyer—but only out of excessive American zeal. Japanese cyclists can consult lawyers, too, if they want. Rarely do they want. The driver who hit me visited the hospital with a box of very expensive fruit (alas, I was on IVs). He arranged to pay the hospital fees (but my US insurance covered them anyway).

With her husband in emergency care, my wife could have visited a bookstore (there are still a few left in Japan). There, she would have found the Japanese equivalent of Traffic Accidents for Dummies. In the book, she would have learned how to calculate my damages and how to estimate the driver’s relative negligence (Japanese tort law uses a comparative negligence regime). She would have learned approximately how much a judge would award us if we sued. It is all very simple—my lawyer gave us exactly that information in all of fifteen minutes. With his own visit to a bookstore, the distracted driver might have learned the same information. Given that he and I had the same information about what would happen in court, we settled by reference to that amount on our own. Did the fruit and the hospital fees matter? Maybe—it was a nice box of fruit. But the driver and I had every reason to settle anyway.

American cyclists and drivers are more likely to retain lawyers and visit courthouses because they are less likely to agree. Even with the famed American discovery mechanisms, they are less likely to reach similar estimates about what would happen in litigation. Unable to agree out of court about the probable litigated outcome, they have little choice but to pay their lawyers to ask the judge directly.

The contrast comes in part from the way American judges and juries try to tailor the outcome to the peculiar circumstances of the specific driver and victim. Table how often they actually understand those individual idiosyncrasies. Japanese judges hardly even try. They vehemently doth protest to the contrary, of course. Japanese and American professors, judges, and lawyers all adopt the same sanctimonious rhetoric. But Japanese judges face professional incentives that cut against taking the rhetoric very seriously (see chap. 7). Where American judges aim for the particularized first best, Japanese judges make do with the routinized second best. As a result, where American parties sometimes face stratospheric trial costs, Japanese parties encounter a routinized alternative that cheaply transfers funds from distracted drivers to their hospitalized victims.¹

In the chapter that follows, I summarize the structure of the system. I begin with a discussion of traffic accidents generally (section I) and of their history in Japan (section II). I then turn to the resolution of traffic disputes: of both nonfatal (section III.B) and fatal (section III.C) accidents. I conclude by exploring the way judges determine comparative negligence (section IV).

I. Torts and Traffic Accidents

Tort and contract claims comprise a large part of what courts handle in any modern democracy. In Japan in 2011, of the cases filed in district court, 275,000 were criminal and 744,000 civil. Of the 744,000 civil cases, 4,000 involved administrative or regulatory fights with the government. Of the rest of the civil cases, many concerned either torts or contracts (Saiko