IMO, one of the largest problems in America today seems to be the monetary disparity in today’s legal system. Namely, court costs are ridiculously expensive. A large portion of these costs seems to be lodged firmly in how good your lawyer is. If you want to win, be prepared to spend more than the other guy.
Of course, this leads to abuse coughRIAAcough where a huge company sues the bejeezus out of some poor guy, forcing him to settle since he could never raise enough money to have a fighting chance at defending himself. This seems to me to be an unlawful abuse of government policy that should be fixed. I’ve recently heard an idea that might help, and I’d like everyone’s analysis of it.
The proposal is this: when sued, if you want to defend yourself you pay a flat court fee that doesn’t take into account lawyer costs. Beyond that, both parties give a bid for further costs, which are used for lawyers and anything that extends the case without providing just reason. Both parties are restricted to only spending the amount cited by the lower of the two bids. In short, if you can only afford $1000, that is all you really need, because the other party would be limited to that too.
One addtional possiblity: if one side wishes to spend more money than the other for whatever reason, it can give (not loan) the money to the other side. That way, extensions beyond what was initially agreed upon is discouraged.
I realize that this idea has flaws, loopholes, etc. but I feel that it would be a step in the right direction in preventing lawsuit abuse.
What if I am a big giant company, sued by some idiot with only some spare change to rub together - but he’s suing me for millions of dollars because of a supposed design defect on my product. I can show there is no defect, but it will cost money to hire expert witnesses to make that point. How can I do that, under your system? The other guys isn;t going to hire any experts, or maybe he’s planning on hiring very cheap, poorly qualified experts who lack the ability and credentials to really explain the situation. My experts would shred them in front of a jury… but I can’t hire them?
We can’t fix the court system until we fix the laws. That doesn’t mean making more of them, it means getting back to the basics. What’s right is right (as long as the might of society doesn’t alter that.)
Problem is that the laws are made by lawyers. (believe it or not!) Congress makes them (mostly lawyers) then the attorneys approve them for legality, then they are tested by the courts. (more lawyers who became judges)
Nothing is simple. Simplify things a bit and it’s a step in the right direction.
Very difficult to undo what’s been done, because so much is based on precedent.
I could go on and on!
Shakespeare had the right idea…except, of course, for all you Doper lawyers who are, no doubt, fine people.
I think InquisitiveIdiot is right in principle, but Bricker makes some good points. Is it even possible for the system to be fair to all? In Bricker’s scenario a person given the OP’s solution might actually use his poverty against the corporate giant. But, if I am a poor man and I have a legitimate cause of action against a corporation whose action (let’s say dumping of toxic chemicals) has caused me to be at death’s door, is it fair that the corporation responsible could, under the current system, keep me tied up in motions and delays with a slew of high-priced lawyers until I die with the case unresolved?
Assuming it could actually be passed into law, if InquisitiveIdiot’s idea won’t work, what might?
I defer to those who’ve practiced civil law and have better insight than I… but when a giant corporation has some actual liability, there is almost always going to be a lawyer willing to accept the case on a contingency basis. This allows a deservign but unfunded plaintiff a chance to go after the Big Bad.
I think avoiding this would actually be good rather than bad. The problem is that these are YOUR experts. They assess the case with an agenda. That makes their assessment by definition questionable, which is why many expert witnesses are uncomfortable with the US system. What it leads to is lawyers lecturing the opposing side’s expert witness as to what he should have found if he had any credibility (when in fact, he was simply weighing the evidence differently) and in turn, lawyers considering themselves experts on everything because since they succeeded to get the testimony of expert witnesses in so many fields tossed out, they obviously must be greater experts than the experts… (I am not saying that this is the general case, and have no intention to offend present lawyers, but it is a frustrating subjective assessment I heard from several people who have been expert witnesses and in line with the attitude of several lawyers I was involved in discussions with on a multitude of issues touching my own area of expertise.) It might not be a general case, but it is nevertheless a problem that raises doubts as to the conclusion of a court and jury.
Academic expertise is not meant to be presented in an us-vs-them fashion, least of all to a jury of laypeople. Having studied, jurists should be well aware of that, but it seems to be easily forgotten in the heat of the courtroom ‘battle’. In other countries, expert witnesses are appointed not by one side, but by the court, and as such are neutral towards the two parties. In any case, any ‘I am right and you are wrong’ expertise is likely to be tainted by the agenda of the expert. The proper thing would be ‘These are the data I assessed, and from them I draw these conclusions’ in full awareness that others might draw similar but distinct conclusions -or entirely different ones if the data has been misinterpreted.
Hmm. Maybe awards could be limited by the size of the money used, say 100x. That way, if you can only spend $100, you can only ask for $10,000. Would certainly keep some rather large companies from suing broke college kids for 50 million dollars apiece.
I would actually dislike this system more, if only for the potential abuse it gives the government. Since the court selects the experts, a bought judge could easily select one that is biased towards one side. At least if the expert is only for one side, you KNOW he has a bias, and can deal with that accordingly.
I would actually dislike this system more, if only for the potential abuse it gives the government. Since the court selects the experts, a bought judge could easily select one that is biased towards one side. At least if the expert is only for one side, you KNOW he has a bias, and can deal with that accordingly.
Although, I do extremely dislike the policy of attacking the expert’s crediblity/sex life in order to make his testimony unbelievable rather than attacking his testimony itself.
I understand that many lawyers will take a good case on contingency, and that many more do pro bono work on a regular basis, but I was referring to the fact that large corporations can afford to keep a case in limbo until the plaintiff dies. The OP was referring to fairness, and it seems to me that money often weighs against fairness.
What do you think would make civil litigation more fair?
Well…Usually, legal systems assume that the judges aren’t partial. If the judge is bought, you won’t get a fair trial, anyway. Same if the jury is bought, or your own expert, or even your own lawyer…
Your argument doesn’t seem very convincing to me. In the situation you’re envisionning, the issue isn’t “who is choosing the experts”, but “how to make sure that judges can’t be bought”, which is a totally different, and way larger issue.
I disagree on all accounts. First, as pointed out, the premise of ANY fair judicial system is that the judge is an impartial arbitrator. Second, the experts are appointed from a pool that no single judge assembles and are sworn to give accurate testimony. A false and biased statement by one that is later shown to be intentionally wrong will kick the expert out of the pool and be equivalent to perjury.
Third, and most importantly, you are seriously fooling yourself if you say that you can deal with the known bias accordingly. No one can do that. Not the judge, not the jury, and not even the expert of the other side, since all they have is the statement of the expert. They can only work with what he DID says, and there is no way of knowing what he left out. His conclusions can be perfectly convincing based on the data he presents -but lack any basis in reality given that he left out all the data that contradicts his conclusions. Without having that data, you’re at his mercy. Likewise, a conclusion may sound convincing to the jury and perhaps even what expert the meager funds of the other side could afford -but be intenable in the light of state of the art scientific knowledge. The jury has no way of knowing. The jury has no way whatsoever to assess the scientific merit of the expert’s position. They can’t even tell if he is REALLY giving a seriously biased account of the affair, or if he is accurately presenting the facts. They simply lack the knowledge to assess his accounts. They are even extremely vulnerable to fall for an inferior position based on evidence when the corresponding expert has superior oratory skills.
The present system is extremely vulnerable to misleading presentations and has a propensity to produce judgements not based on scientific evidence
I have an objection to the basic underlying assumption, namely that there is anything wrong with the system. The RIAA suits are more publicity than anything, and there is such a thing as a judgment proof defendant, i.e. even if you win a 50m judgment against a college kid, he isn’t going to pay you. 2nd, I think your fears of court cases being tied up for years are overstated. Yes, litigation takes time, but there is no magic wand that a lawyer can waive to make a court keep rehearing cases. In general, at least in my experience, when a company thinks it has liability it will probably settle the claim for a just amount. Companies don’t want to pay more for legal bills than they have to, and if they think they are going to lose, they will settle.
I assure you, this is not the case. The primary factor in the time it takes to resolve a case through the courts is how quickly the courts decide to act, not anything the lawyers can do. I can ask for a couple 30-day extensions. Big freakin’ whoop. Meanwhile, I’ve got a case that has been pending before an appellate court for damn near two years, and I’d be thrilled to death if I get a decision at 9 a.m. tomorrow.
Plus, the RIAA is right, and the punk kids stealing music are wrong.
