Some people feel that they do. These people are entitled to legal representation. While the process of deciding the truth of the matter is flawed, it is far less so than only allowing claimants that you believe have a case to be represented.
I find it interesting that you criticise anyone’s logic skills when you make the rather contradictory claims that cigarettes (which had been referred to as “cancer sticks” and “coffin nails” as early as the 1920’s) were not known to have been unhealthy until the 1950’s, while cellphones are known to be safe because they’ve been around over 10 years. These examples of logic cannot both be valid.
I tend to agree with Crack’dOff that there is some imbalance in the tort system. There are a hell of a lot of lawyers out there, and since they all want a decent dinner at the end of the day, there’s enough competetition that somebody’s bound to take an obviously meritless claim and try to turn it into a payday. Just because a plaintiff is entitled to representation does not mean that a lawyer should abandon all judgment in accepting such a claim. But an oversuppply of lawyers ombined with the short-sighted willingness of defendants and insurers to settle rather than fight leads to some messed up situations.
I remember a law review article I read a year or two ago (Journal of Corporation Law?) that did a study of accounting firms. The author examined how each of the accounting firms responded to investor lawsuits (where investors who have put money into a bad company sue the accounting firm for not doing their job well enough–a relatively new kind of lawsuit). It turned out that one of the big six firms consistently fought like hell against such suits. They also happened to get sued a whole lot less. Don’t know if that would have worked in the case of silicone breast implants, but it’s interesting anyway.
And isn’t it telling that even though we’ve been hearing about the “link” between cell phones and brain tumors for a couple years, there hasn’t been any news of a real lawsuit being filed, much less being successful? Tends to indicate to me that the courts are quite capable of weeding out at least some meritless claims.
I am NOT a lawyer. That was the first thing I said in my post. Legally educated, yes. Lawyer, no.
The fact that cell phones do or do not cause cancer is still in doubt. The pressure of real or potential lawsuits will drive more research which WILL determine the answer.
Pinto defect discovery - You’re right, it probably would have been discovered…eventually. When the death toll had risen high enough to attract media attention. Would you be willing to have someone you care about be a part of that price?
Your comment re: NOTHING in common - this is a bald statement. No discussion, no argument, no substantiation of your point. To what purpose did you write this?
Doing something - Yes, as a matter of fact, I do something about this issue. Do you? I vote for and support people who are in favor of tort reform. I discuss the issue in forums such as this and try to persuade others to do the same. What do you do, aside from complain?
Finally, I’d be much more willing to listen and consider your position if you made an effort to refute my statements with facts, logic and/or some type of discussion. You bitch about the costs of lawsuits to society, yet you then completely ignore my comments regarding tort law and why the costs from defective products are allocated in the manner that they are.
In my post, I clearly asked for comment on this and many other points related to this whole topic. Your responses are the same ill-informed knee-jerk reactions typical of the common masses. I thought that the whole point of this board was to fight ignorance. How about taking some time to re-read what I wrote earlier and make an attempt at a logical response?
As I said, I am NOT convinced that our legal system is the best way to handle this. I am not arguing against you in my post. Come on, man, this is your opportunity to help make a difference. Use your intellect to come up with a better solution to this problem we have in our society. Are you up for such a challenge? Or, will you just sit back and bitch some more?
You’re changing the terms of the discussion to squirm away, again. I only noted that the earliest evidence was over 70 years old. Lombard and Doering published a controlled study showing a corelation in 1928–and they were not the first to discuss the subject. The first epidemiological study was published in 1947, still earlier than the careers of any current executives, and the tobacco industry started their “independent research” group as a deliberate propaganda device (as their internal documents showed), in 1954.
I had taken issue with this assertion
Trying to deflect my response with misdirection over the date of the first epidemiological report does not invalidate my statement. They continued to seek and hold new customers and to lie about the danger of their product for years after they had known of those dangers–and it was the activity of lawyers who finally identified their unethical behavior.
It is worse than that. It is in the interest of both sides in the adversarial that the juries be easily swayed by argument. Not only are the best people able to easily get out of jury duty, but the best people who might feel a duty to serve generally are not allowed.
I didn’t say that the expert testimony was necessarily the least competent, just that such a case was encouraged by the system.
The least competent thing an expert can do is put opinion and ego ahead of facts. The system encourages each side to seek out “experts” willing to completely deny the other side.
I don’t know the specifics of evidentiary reform for expert witnesses so I can’t address that.
Obviously the person with a brain tumor can not wait 20 years for a connection to be found. But does that mean the courts should find causality where there is no solid evidence of it? If anecdotal evidence is all that is required, in the name of speed, then we may as well descend into absolute nonsense.
At the time Dow settled, if I recall correctly, it had lost a series of judicial decisions despite increasing evidence of no correlation. Settling was a business decision, not a legal one.
I’m not worried about the probable outcomes of any specific case before the courts, but I do worry that the legal system we have does not really have the mechanisms for evaluating science. And yet it is continually put in the position of doing so.
Peace, baby, you still haven’t answered my question as to what your original language was (or was this another cover-up you used to hide your inner idiocy?).
I forgot. Why do you want to know? If you hope that you speak it too and want to chat with me behind mod’s back, they wouldn’t allow it.
Some people feel that they do. These people are entitled to legal representation.
Here is your problem Waterj. Or shall I say your money, our problem.**
Because cellphones do not cause brain tumors**. Period. I do not care what they feel. They may feel that fucking layers caused their tumors, the evidence is much stronger.
If you think that there was a scientific, not folkloric evidence between cigarette smoking and cancer, give me quotes. Cellphones have been around only ~10 years. Early phones radiated more. 10 years or so is a relatively fast but possible latent period. If cellphones cause brain tumors (which is unlikely on pure theoretical grounds; heavy industrial air pollution may cause cancer, because there are knowncarcinogens in the air), I would expect them to show up now and be increasing every day, reflecting the spread of cellphones from 10 years ago.
In general: if cellphones caused brain tumors, they would did it by low energy high frequency radiation. Lung cancer is caused by a number of carcinogens in the tabacco smoke. The mechanism of induction, the pathogenesis, the target organs, etc, are different. Comparing them is like comparing proverbial apples and oranges.
Crack, I do not want to argue the same points over and over; I feel that you do not understand epidemiology, etc, (nothing wrong with that) but your # 4: cell phones and Pinto story have nothing in common. If you think, tell me what exactly, and I’ll show it to you point by point.
What do you do, aside from complain? Unfortunately, nothing. I wish I could. I wish I could do more in other areas, which are interesting to me. Alas…
You bitch about the costs of lawsuits to society, yet you then completely ignore my comments regarding tort law and why the costs from defective products are allocated in the manner that they are.
You know, it’s easy to bitch. I do not feel myself qualified in this area to do meaningful analysis. I am flattered, though, that you are interested in my opinion. I can only offer my help in medical/epidemiological issues. I used to know a few guys with MD/JD degrees. Most of them worked for AFIP and were not interested in tort litigation. Ideally, they would be able to handle complicated medical malpractice cases.
As far as your last paragraph: I wish I knew the solution. I understand that in a market economy appeals “to be less greedy” will not work. Do you know how the things are in England: is a threat to pay the court costs works as a deterrent or it encourages the other side to be irresponsible? I know that in MA a party which refuses to pay a legally required costs (let’s say a guilty party in a road accident) will pay triple amount plus costs if it loses in court. I am not a lawyer (you guessed correctly), do not know details and do not know how much difference it makes, except for some hearsay.
Totally on your side here. I find it sad that, simply because I’m a lawyer, no sane litigator will ever let me slip past voir dire and actually sit on a jury. For reform, I’d find a way to make everybody who’s called show up for jury duty unless they have an extraordinary excuse. Then I’d get rid of peremptory challenges, so that you can only get rid of a juror for good cause.
State laws still vary a bit, but since Daubert v. Merrell Dow Pahrmaceuticals, a 1993 Supreme Court case involving the anti-morning sickness drug Bendectin, federal judges have been required to rule on the reliability of expert testimony before it gets admitted at trial. True, this is largely a matter within the discretion of the judges. But it is a heck of a lot more restrictive than earlier standards that simply let anybody who knew a lot about the subject (say cell phones or brain cancer) testify about anything relating to the subject. Many state courts (including Texas, where I live) have adopted the Daubert standard.
Under the modern Daubert standard, anecdotal evidence will not get a witness in front of a jury. As Justice Blackmun put it for the majority, “in order to qualify as ‘scientific knowledge’ [what the expert witness must be testifying about under the federal rules], an inference or assertion must be derived by the scientific method.” That right there weeds out a whole lot of pseudo-scientific nonsense.
Totally a business decision. If they’d been far-sighted enough to let their lawyers fight it out, Merrell Dow would never have entered bankruptcy, and a lot of plaintiffs’ attorneys would still be chasing ambulances. Bloody cowards, I say. Those decisions on liability were made by juries, btw. When judges started to be called upon to make preliminary admissibility decisions, they consistently ruled in favor of Merrell Dow.
Yes, the legal system sometimes has to make decisions on science before science has formed solid conclusions. But short of a universal insurance system [“Paging Mrs. Clinton!” :)], it’s a choice between denying all claims and making decisions based on incomplete data. Since I’m unsure where to draw a line that says when “incomplete” is “unreliable,” I think it’s better to err on the side of allowing somebody to decide what’s more likely than not. Keeping in mind, of course, that both sides in such a system have one heck of an incentive for filling in the incomplete data with convincing evidnece.
And just in case anybody was really expecting an intelligent response from the OP, give it up. This is his modus operandi, and he enjoys your attention.
(A preface - I hope I’ve got the quote thing correct. I’m still new enough to be not quite certain. I apologize in advance if I’ve incorrectly quoted someone)
OK, I do have a bit of a problem with what you’re saying here. First of all, I believe that it is in the best interest of Justice (if there is truly such a thing) that juries be easily swayed. If they’re not, then I’d worry that they have a built-in bias towards one side or the other.
As for your comment about the ‘best’ people serving on juries, I’ve struggled with this concept in my law studies and in forming my personal opinions about our legal system. As an intelligent and highly-educated person, I often see legal decisions by juries that I do not agree with. I sometimes fall into the trap of saying that the members of the jury were not educated enough or that people who should have been on the jury were excluded, etc. The problem is that if we set up a system of ‘professional’ juries so that all cases are heard by the ‘best people’ to decide the merits of the case, then the decisions will no longer reflect society, but will instead be the product of an elite group of individuals. Also, who will make the decisions of who these people should be? I think that the risk of excluding a segment of society from being represented in the legal system would be quite great.
Believe it or not, this discussion happens every day in law schools around the country. What is the best system? Again, I do not know. What I do know is that I would like to see jurors compensated for their time at the rate an individual makes at their job. Often what happens is that the judge presiding over jury selection will question a potential juror about the financial consequences of being selected. If that person isn’t going to be paid by their company while on jury duty, guess what? They’re not going to be selected for any trial expected to last more than a few days. You don’t want a juror making a decision in a murder trial (or any trial, really) based on the fact that he’s losing money every minute the debate continues. Hence the reason retired persons act as jurors in a disproportionate ratio to the rest of society.
However, with my solution the obvious issue is, who pays? The juror’s company? Could be a constitutional violation - government taking w/o just compensation. The government? My god, think of the tax consequences. Again, no good answers are apparent.
How about a ‘raw’ juror selection process? The first 11 people on the list are it. Period. No exclusions. Aside from the financial impact on individuals noted above, is this what we really want? How are jurors put on the list? Drivers license records, phone books, and voter registrations are currently the most often used to generate potential lists of jurors. Is this fair and just? How many people in society have we excluded based on this selection criteria. Do we have a ‘jury of peers’? Again, no real good answers.
[QUOTE]
**
At the time Dow settled, if I recall correctly, it had lost a series of judicial decisions despite increasing evidence of no correlation. Settling was a business decision, not a legal one. **
I completely agree here. Often the cost of being ‘right’ is more than the cost of giving up. This gets to one of the core reasons why attorneys are not well liked by society. If a client loses a case, he blames his attorney for being incompetent, and therefore hates him. If a client wins his case, he’s still angry at his attorney because he had to pay even though he was ‘right’. It’s a no-win situation for an attorney.
Now, there are legal systems that attempt to get around this dilemma. England uses the ‘loser pays’ method. If you bring a case and lose it, you pay both sides legal costs. Sounds fair, right? Is it, though? If you’re poor and get run down on the side of the road by some rich dude, would you risk your entire financial future to get payment for your injuries? Or, do the poorer segments of society get stuck in a Dow-type situation. They are ‘right’, but do not have the financial means to run the risk of taking it to a jury.
**
How very true this is. Once again, this debate is raging in the legal field. One solution being considered is a ‘Science Court’ where cases with extremely scientific or technical issues would be brought before juries that are selected in a different manner and tried under different rules. We already do this in our legal system with the separation of criminal and civil law, so there is historical legal precedent. The rules for jury selection and trial procedure are quite different in civil vs. criminal courts, so why not ‘science law’? As a person with both a legal and technical/scientific background, I am rather in favor of creating such a body. Again, there is the major problem of funding and then selection and training of the personnel for such a system. No easy answers anywhere, are there?
One of the reasons why the law is such a difficult and complicated thing is that it tries to describe, explain, and put boundaries on human behavior. Behavior which is inherently indescribable (with any accuracy), primarily unexplainable in most cases, and essentially boundless. That is the core of the problem.
What do you all think?
Damn. I think I just re-discovered why I loved law school. Too bad practicing isn’t anything like it.
Tom, as I said, I do not defend tobacco companies. I do not want to be patted for the correct date of this or that report, if I can get it. I am just saying that the tobacco industry should not be held responsible for other peoples sins while others get a free ride (e.g.,liquor).
I think I should shut up and let you talk. Too bad you don’t practice anymore, Crack’dOff. I figure it takes somebody who sees through the system to make it work right.
no, that’s not what you said, peace. You said (and I’m kinda paraphrasing, since your anti-lawyer sentiments were stong enough to be deleted) that lawyers were the problem. If they were as bad and evil as you say, liquor companies would be sued left and right as well.
Stop lying! I am seriously considering taking back every good thing I said about you, for acting like an ignorant pustule.
[QUOTE]
*Originally posted by peace * Crack, I do not want to argue the same points over and over; I feel that you do not understand epidemiology, etc, (nothing wrong with that) but your # 4: cell phones and Pinto story have nothing in common. If you think, tell me what exactly, and I’ll show it to you point by point.
Peace, the point I was trying to make by comparing the cell phone case to the Pinto case has nothing to do with the facts of the case and everything to do with the legal recourse that each party is able to resort to.
Both parties were injured by allegedly defective products. In the Pinto case, proir to trial, it was unproven (legally) that the defectively designed turn signal caused the car to explode. During discovery, the plaintiff’s attorneys found documents in Ford’s possession that indicated that Ford knew that the turn signal was defective prior to the accident injuring the plaintiff. This was a very key piece of evidence that made the plaintiff’s case. Had Ford been unaware of any problems with the turn signal and/or had taken steps to fix it, the damages they would have had to pay the plaintiff would have been significantly decreased.
In the cell phone case, I do not believe that the issue has been commpletely resolved and is scientifically conclusive that they cannot cause tumors in the brains of users. However, and here is the point of similarity between the two cases, I believe that the plaintiff in the cell phone case has the right to attempt to prove that the defendant’s cell phone caused his tumor. In doing so, the plaintiff has the right to conduct discovery to see what research or documentation (if any) that the defendant has which would help prove his case. In the Pinto case, these would be documents such as Ford had which showed that there was a problem with the turn signals. If I were the attorney for the cell phone plaintiff, I’d be looking for evidence of other individuals that had tumors that the defendant had bought off with out of court settlements. I’d also be looking for any indication that might indicate that the defendant was aware of any problems with their product.
As for the actual medical probability of cell phones causing brain tumors, I have no opinion and am not qualified to make such determination. As an individual in society, I have to look at the results being published by scientists who are qualified to study the issue. Part of this, of course, is to evaluate the scientists doing the studies. Who is funding the research? Do any of the scientists doing a such a study have any familial or financial connections to the industry? In essence, I have to make the determination as to the credibility of each of the studies.
Does that explain the point I was trying to draw between the two cases?
At this point, I would like to offer an apology to you about my tone at the end of the last post. I hope that you were not offended (too much, that is ). I wanted to draw you out and engage in a debate with you. I really do want to know your opinion on these issues.
One thing that we ALL should remember is that *** reasonable people can reasonably disagree on issues of law and, for that matter, science and medicine and pretty much everything else***.
Yes, it is easy to bitch. However, I must disagree with your statement that you are not qualified to do a meaningful analysis. I am very interested to hear what you have to say. This issue is one that affects all of us equally in society. I, perhaps foolishly, do not believe that the law belongs only to lawyers. How to allocate the costs of injuries to members of our society is currently being done by the tort law system. This has evolved over hundreds of years and may or may not be the best solution. Yes, attorneys have helped shape the law as it now stands. Yet we should always be open to new ideas and suggestions on how to do something. New ideas might not stand up to scrutiny or wind up being better than the system we currently have. However, if we are to find better solutions, we must keep our eyes (and minds) open and at least examine new ways of solving problems. These new ideas shouldn’t be limited to just attorneys. After all, an attorney might not even be the best person to design a solution. Like a scientist conducting research for a cell phone company that is paying his salary, there is always a conflict of interest when attorneys draft laws where they stand to benefit.
The solution? Become involved. Spend more time deciding on who to vote for. Write letters to your representatives. Hell, for that matter, build yourself a sign that says ‘Support Tort Reform’ and walk down Main St. with it!
:::steps down from soapbox with an embarrased look around:::
**
From my reading on comparative law, the ‘loser pays’ model that England and other countries use does have a deterrent effect on litigation. Of course, this is by design. The ongoing and biggest issue with the ‘loser pays’ model is the concern that the model is discriminatory to the poor and favors the wealthy and corporations.
Here’s an example to illustrate (I’m making this example up. It is not based on a real case, but should make the issue clear.) Plaintiff is seriously injured by a defective product. He is a neurosurgeon early on in his career and his injuries have made him unable to practice his profession. He has several hundred thousand dollars in med school loans, and very little savings since he’s just started his career. His potential damages are huge. Lost salary and wages alone could run in the millions of dollars over his lifetime. Now, in England, he has a decision to make. To sue or not? If he sues, he’ll probably get a single lawyer and run up tens of thousands of dollars in legal expenses. The corporation he’s suing, on the other hand, has deep pockets and plenty of legal resources to allocate to this case. The corporation determines that they could face potentially $10-20 million in damages. So, they decide to throw 6 attorneys at the case and will run up hundreds of thousands of dollars in legal fees. This becomes a tactic that they can use to force the plaintiff to settle his damages for much less that he’s reasonably entitled to.
Is this fair? Is Justice served by such a system? Too much power to the rich and corporations? I don’t know the answer. However, it is the model that England as a society has chosen. Of course, I could be really cynical here and say that the rich run the society and the poor have been screwed again. But you see the dilemma, I’m sure.
At this point, I think I’m going to call it a night. Thank you all for your participation in this discussion. I’m looking forward to reading and responding tomorrow! Take care…
One thing you forgot to mention, Crack’d: in England, not only is the system “loser pays,” but there is also a general prohibition on contingency fees. It’s a double whammy: “Loser pays” discourages injured people, and lack of contingency fees discourages their lawyers. I’m not sure our system is a heck of a lot more efficient, but at least it gives the little guy a chance at the same time it gives the lawyer a huge opportunity.
Sorry, I didn’t intentionally ignore this question. I’m Australian and my first language is Australian English. I speak French pretty badly and have a fairly limited grasp of sign language too.
We had a debate on this issue a few months ago: Loser Should Pay in Lawsuits - PERIOD!, courtesy Wildest Bill. It’s a long thread, and re-reading it makes my head hurt, but some may find it interesting.
Since peace asked for information on how the costs systems work in England, I thought I would repost my contribution from that thread:
peace also asks what effect the costs system has on litigation, and whether it reduces frivolous lawsuits. I don’t have any stats to offer on that issue, but from an anecdotal perspective, it seems to me that Canadians are not as litigious as Americans. There may be a variety of other social reasons for that, however, so I’m reluctant to say that the costs system is responsible. At most, I’d say the costs system may a contributing factor.
). I wanted to draw you out and engage in a debate with you. I really do want to know your opinion on these issues.