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Tort Reform - A New Solution.  
User currently offlineCsavel From United States of America, joined Jan 2001, 1363 posts, RR: 4
Posted (10 years 8 months 1 week ago) and read 820 times:

"Tort reform" is getting a lot of press in the US. You hear trial lawyers demonized on the right and big corporations demonized on the left. I personally feel that those on the right have some point about how the legal system is out of whack but the proposed solution is so skewed that the cure will not correct an imbalance but merely replace an imbalance on the left for one on the right.

I've been thinking about a middle way for some time that will cut down on frivolous lawsuits while allowing people to get substantial compensation for truly egregious and scandalous wrongs.
I'm not a lawyer but I'd love to hear from those in the legal profession to see if my idea is embarrassingly stupid (just press suggest deletion and help me save my self-esteem) or if it has merit.

Here goes.

Instead of capping damages, why not simply increase the burden of proof and require a unanimous verdict?

In the US, at least in New York and I think in other states, it takes a jury to find a preponderance of evidence (more likely than not, or 51% likely) to find an entity liable for damages. The jury also doesn't have to be unanimous. If we take the burden of proof and raise it to the same standard as in criminal trials and also require a unanimous jury, would it not be more difficult to collect and win? And wouldn't it also allow for, say a kid who lost his penis to a botched circumcision, to collect substantial damages in cases where it is warranted? Especially for punitive damages.

I believe that would winnow out, in most jurisdictions, the truly headline-grabbing cases, like the McDonald's hot coffee verdict, where I think jurors went something like "Well Mickey D's is huge, they shouldn't have had the coffee so hot. So what if the woman was a moron?" to the more difficult realm of proving beyond a reasonable doubt responsibility. Also with a unanimous verdict, the case would have to be really airtight. Now once it becomes more difficult to win, there is less incentive to sue and hope for a settlement from the other side. The other side will see more incentive to fight if they have a good chance of wining. They'd only settle if they knew they were wrong. It's not a perfect solution. Criminal juries are certainly capable of idiocy, but it is a much better way.

An important corollary to this is that there must be no exemptions from jury duty. New York got rid of automatic exemptions a few years ago and it has worked beautifully. Even Rudy Giuliani had to serve! This way you'd get a greater cross-section of the community - including doctors, lawyers, cops, and business people.

You would then not need caps because very few cases would make it to those huge jury awards, and the ones that did probably merit it. Like the botched circumcision. There isn't enough money in this world to compensate little Timmy for the loss of his moneymaker.

So what do people think? Good? Bad? Unworkable?





I may be ugly. I may be an American. But don't call me an ugly American.
11 replies: All unread, jump to last
 
User currently offlineCfalk From , joined Dec 1969, posts, RR:
Reply 1, posted (10 years 8 months 6 days 23 hours ago) and read 807 times:

I agree with much of it, with the following modification.

Today, damages awarded are either compensatory or punitive. I think that the compensatory damages should of course go to the plaintiff, and the legal fees (if the lawyer is working on a success fee basis) should be paid purely out of that.

But the punitive damages should not go to the plaintiff, nor should one cent go to the lawyer as part of his success fee. He has already won fair compensation. The purpose of punitive damages is not to award the plaintiff, but to punish the guilty in order to convince him not to do it again.

I think all punitive damages should go to the federal government to help balance the budget. If the budget deficit is less than 1% of GDP, then the money should go to a recognized charity of the judge's choice.

That should cut down significantly the desire to go after those billion dollar awards, if the lawyer does not get 50% of it.

Charles


User currently offlineGarnetpalmetto From United States of America, joined Oct 2003, 5395 posts, RR: 53
Reply 2, posted (10 years 8 months 6 days 22 hours ago) and read 796 times:

Totally disagree with you on your view of punitive damages, cfalk. Sometimes plaintiff's are limited in how much they can ask for in compensatory damages and there certainly are cases, like the McDonald's Hot Coffee case, where the defendant has such an obvious track record of negligence and disregard for safety where punitive damages are needed. Why though, shouldn't they go to the plaintiff if the jury feels that the plaintiff deserves it? Not only that, but you're mistaking a few extraordinary cases for being the ordinary. Humongous punitive damages aren't normally given out, and when they are, they're often reduced by the judge presiding over the case or reduced on appeal (as happened with the McDonald's case) nor do attornies usually ask for them as it immediately sets the wrong tone with a jury. Not only that, the jurisdictions that do have punitive damage statutes (keep in mind many states don't) demand a higher burden of proof. There's the reform you're asking for, Csavel.

In general, I believe the tort system works fine as is. The media loves showcasing cases and twisting facts to generate ratings and readership, again, look what they did in the McDonald's case. To this day, a large majority of people have the facts of the case completely fouled up. The fact that many frivolous lawsuits get tossed out of court on a daily basis fails to make the news because it's not sexy and because of the sheer numbers. In a 25 year study run from 1965 to 1990 (slightly old data, I know, but one can expect it to stay roughly steady), there were 355 product liability cases in which juries awarded damages. Of those, only 35 had an award greater than $10 million. In all of those but one, the award was "sharply" reduced by judges. In other cases, the truly stupid cases, such as the recent one against WN over their "Eenie, Meany, Miney, Moe" rhyme, a jury will return a finding of no liability against a company. I realize that the few sensationalized instances that make national and international headlines make it seem like runaway juries are commonplace, but they truly are not. Keep the tort system as is unless you want to wake up and suddenly find one day that you can't sue for product liability or negligence.



South Carolina - too small to be its own country, too big to be a mental asylum.
User currently offlineCfalk From , joined Dec 1969, posts, RR:
Reply 3, posted (10 years 8 months 6 days 22 hours ago) and read 795 times:

Why though, shouldn't they go to the plaintiff if the jury feels that the plaintiff deserves it?

What the plaintiff "deserves" is represented by compensitory damages. My issue is that punitive damages are in no way deserved by the plaintiff. The are instead a state imposed penalty with the purpose, not of giving compensation to the plaintiff, but to seek to discourage repeat performances.

And why are there so many frivolous lawsuits? Because the U.S. has far too many lawyers per capita, and in order to keep busy, they seek the slightest chance at a case that might represent serious money on which they can demand a 40-50% cut. One multimillion-dollar case and he can retire. This is why you have so many ads saying stuff like "Have you been injured? Insulted? mistreated? Give us a call!"

By making the punitive damages off-limits to the lawyers, those cases will become much less interesting to them, and they will start being more selective about the cases they take - only taking the serious ones which have a decent chance at winning. Right now, the U.S. court system is nothing but a lottery. Not many winners, but when they DO win, it's time to buy that house in Bermuda.

Charles


User currently offlineGarnetpalmetto From United States of America, joined Oct 2003, 5395 posts, RR: 53
Reply 4, posted (10 years 8 months 6 days 22 hours ago) and read 788 times:

Again, MANY states have no punitive damage provisions. Again, a few states limit how much a plaintiff can ask for in compensatory damages. If a jury feels that a plaintiff deserves more than he asked for, I see no problem with it at all. Again, who cares if there are hundreds of frivolous lawsuits being filed? Pragmatically speaking, the filing fees are monies to inject into local governments and, pragmatically speaking, the truly idiotic cases get thrown out by judges with a fair amount of regularity - the fact that you don't hear about it every day in print or on television hardly means it isn't happening.

Per your commentary on frivolous lawsuits again, read the second paragraph of my first response. Typically, by the by, attorneys make a 33% cut, not a 40-50% cut..and where does a good portion of that that money go? Expert witnesses, overhead, etc.

This is why you have so many ads saying stuff like "Have you been injured? Insulted? mistreated? Give us a call!"

Have you considered this may not be the case at all? Most attornies have no illusion of being a rainmaker. Rather, the large numbers of ads you see is a result of another point you bring up, the large number of lawyers available. As an attorney fresh out of law school you often face quite a bit of debt and, as a result you need business. Considering most midsized cities in the US can have hundreds of lawyers operating both in firms and independently, having advertising is a quick and easy way of allowing potential clients to know that you exist in such a saturated environment.



South Carolina - too small to be its own country, too big to be a mental asylum.
User currently offlineB2707SST From United States of America, joined Apr 2003, 1369 posts, RR: 59
Reply 5, posted (10 years 8 months 6 days 21 hours ago) and read 780 times:

Aside from caps on punitive damages, preferably to some multiple of compensatory and consequential damages, I think a loser-pays arrangement, such as that used in most of Europe, could vastly reduce the number of frivolous law suits clogging the court system. With many trial lawyers offering fees on contingency and even picking up court costs, plaintiffs have no incentive not to sue. A loser-pays system would not present a major barrier to plaintiffs who have suffered real injury, but it would make money grabbers think twice about filing lawsuits at every turn. Mandatory pre-trial arbitration could also reduce the volume of cases that proceed into the courts.

--B2707SST



Keynes is dead and we are living in his long run.
User currently offlineGreg From United Kingdom, joined May 2005, 0 posts, RR: 0
Reply 6, posted (10 years 8 months 6 days 16 hours ago) and read 769 times:

There is no reason that lawyers should not be compensated for the expertise in gaining awards for plaintiffs.

Lawyers represent people, and contrary to popular opinion, we do not sit around and make up lawsuits "just for the Hell of it."

While understanding there are some shady characters out there, the profession (lawyers, judges, and clients) does a fair job of weeding out the worst of them--they simply ruin their reputations and don't get clients.

Most the lawyers I work with came out of law school debt free. There was no immediate need to 'postitute' our services on behalf of anyone.

It's always been fashionable to bash lawyers because of their incomes (yeah, you're right..it's damn decent)...but I am amazed because most complainers have neither studied any type of law...or are ignorant of the system--both it's uses and abuses.

Flame away-it's not going to change a thing. I'll get off my soapbox now.

Brgds.


User currently offlineDelta-flyer From United States of America, joined Jul 2001, 2676 posts, RR: 6
Reply 7, posted (10 years 8 months 6 days 15 hours ago) and read 762 times:

I think punitive damages should go to the government, for the reasons expressed by Cfalk. That award represents a fine, like a traffic ticket. The compensatory damages already include "pain and suffering", so the plaintiff would be adequately compensated. The lawyers should only get a small fraction of punitive damages, as that is the catalist for frivolous lawsuits, not the lawyers' virtuous sense of compassion toward someone who has been screwed.

Sorry, Greg, but your profession carries around a lot of heavy baggage.

Pete


User currently offlineGarnetpalmetto From United States of America, joined Oct 2003, 5395 posts, RR: 53
Reply 8, posted (10 years 8 months 6 days 15 hours ago) and read 760 times:

The lawyers should only get a small fraction of punitive damages, as that is the catalist for frivolous lawsuits

Again (for the 3rd time), many states have no provisions for punitive damages, yet also have frivolous lawsuits. What's your explanation there?



South Carolina - too small to be its own country, too big to be a mental asylum.
User currently offlineDelta-flyer From United States of America, joined Jul 2001, 2676 posts, RR: 6
Reply 9, posted (10 years 8 months 6 days 14 hours ago) and read 750 times:

What's your explanation there?
I don't have one for the states that don't have punitive damages. But I do know that many lawsuits are filed in Mississippi because there are jury pools very sympathetic to plaintiffs in high dollar damage suits.

Pete


User currently offlineL-188 From United States of America, joined Jul 1999, 29800 posts, RR: 58
Reply 10, posted (10 years 8 months 6 days 14 hours ago) and read 745 times:

There has been studies that show for every percent increase of the population of lawyers in a country, the GDP of that country will suffer a drop of 3 to 4 percent.


OBAMA-WORST PRESIDENT EVER....Even SKOORB would be better.
User currently offlineCsavel From United States of America, joined Jan 2001, 1363 posts, RR: 4
Reply 11, posted (10 years 8 months 6 days 1 hour ago) and read 738 times:

Delta-flyer
Would jury pools in Mississippi be as easy to get awards from if it had to be unanimous and *everyone* from all social classes and walks of life - doctors, lawyers, the judges themselves, had to be on the juries? Couldn't that help to mitigate that problem?

L-188
Interesting study, where can I read a copy of it? I'd like to see their methodology.

Cfalk
The problem with punitive damages going to the govt is that then the govt will become worse than any horror story you've heard about trial lawyers, and since their pockets are practically limitless, courtesy of the taxpayer, there is no disincentive to them in to milking that cash cow. Frankly, that would scare me even more than the system we have now. As for the 1% GDP cap, I'm not holding my breath for that to happen, alas, and I certainly don't want the judges impartiality questioned - what if he has a pet charity that really needs dough. Can you imagine the appeals going forth for that?



I may be ugly. I may be an American. But don't call me an ugly American.
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