Felons, Outlaws, and Tort’s Troubling Treatment of the “Wrongdoer” Plaintiff

Abstract Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no. Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the 21st century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.