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.