False choice, as far as I’m concerned, jb. I don’t think anybody’s in favor of lawsuit abuse, and I think loser-pays would both discourage a large number of meritorious claims and work unfairly when parties with identical claims get inconsistent verdicts. Personally, I’m just in favor of reforms that allow courts the flexibility to weed out bad claims at an early stage, plus giving them the resources to deal with cases in a reasonable amount of time. In other words, I’d rather tweak the system than blow it up.
First week as an articling student. Nailed the opposing senior counsel with fixed costs paid personally forthwith. Heh, heh, heh. Framed the endorsement. This costs stuff not only makes for a more efficient system, it’s just plain fun!
Well, let’s look for a sec at the societal costs.
Start with the premise that healthy people tend to be far more productive than injured or unhealthy people. A society with phyically healthy people will be more economically healthy than a society where a significantly larger proportion of its population is injured or unhealthy. Injury and ill health represents a very real economic cost, which can be determined in comparisons of GNP. Brundtland and the WHO have been pushing this quite strongly.
So there you are, with this ongoing cost to society of injured and unhealthy people not pulling their weight. What can you do about it? A combination of litigation, insurance, and regulation.
In the USA, corps are kept in line by litigation more so than in many other nations. In particular, massive punitive damages out of all proportion to the injury are awarded to reflect the harm done and harm potentially done to other persons but not brought to court. This way relatively minor injuries which otherwise might not be litigated are encouraged to be litigated in hopes of a large settlement, and the threat of such a settlement encourages corps to not let little things slip by simply because the degree of injury in a large number of incidents would be minor. Thus the McDonalds coffee award. If the award were in proportion to the injury, McDonalds would not have lowered the temperature of their coffee to a more reasonable level. Because the award took into account the estimated frequency of similar spills and the ensuing minor, non-litigated injuries, the punitive portion of the award was set high enough to deter the corp from continuing it’s unsafe practices. The cost of litigation of this sort gets built into the product and passed on to the consumer.
What if such litigation is not permitted? Then insurance plays a more dominant role. Let’s face it, if you live in a county where corps are kept in line, you do not go overboard on insurance, whereas if you live in a country where corps are not as responsible, you load up on insurance. The cost of this is borne two ways: by the individual, and/or by the government.
I can’t think of any country where corps are out of line but still most individuals are well off enough to load up on insurance. It just doesn’t work that way. Thus most countries either take the economic hit of injured and unhealthy people and let the corps do their own thing (e.g. many developing nations), or the governments provide the insurance (most developed nations). To keep costs in line, governments which provide insurance do two things. First, they streamline systemic costs by introducing no-fault regimes where feasible, ranging anywhere from universal medical care to social and disability insurance to statutory accident benefits. The public pays these costs through taxes. Second, governments regulate to keep corps in line by setting standards which ultimately help protect the public. These costs are passed on to the consumers.
Obviously there is a combination of GNP hit, litigation, and regulation in all nations. When comparing apples with apples, the USA turns more toward litigation while other developed nations turn more toward public insurance and regulation. Developing nations just take the GNP hit and continue struggling.
So when Peace comes out with Henry VI, Part II, Act IV, Scene II, I wonder if he actually thought it through, for the USA model is one which places proportionately more of the cost of injured and unhealthy people on consumers rather than on the general public. It’s either pay the lawyers and plaintiffs (most American’s preference), or pay more taxes and suffer more regulation (my personal preference), or start enjoying third world living unless you are one of the luck few. I doubt if Peace thought through his economic regime any more than Shakespeare’s rebel and butcher did.
waterj2 wrote:
If I come down with osteoporosis, and I “feel” that my former employer caused my osteoporosis because the walls of my office were painted an unattractive shade of pink, should I be entitled to legal representation too?
It is my opinion that plaintiffs in a liability suit should be required to show some kind of correlation, if not a full-blown causal link, between their current problem and the thing they claim gave them the problem. The brain tumor happening to lie where a cell phone was being held is not a correlation – a study showing that twice as high a percentage of people who use cellphones get brain tumors as people who don’t, that would be a correlation. Failure to show a correlation should be grounds for the judge to throw the case out of court without a trial.
Yes. You’re not really suggesting we should ration access to legal advice, are you? However, the legal advice in this example would be that the claim is meritless and that the client and/or the attorney would likely be fined for filing a frivolous lawsuit.
Plaintiffs in a tort suit always have to prove causation. If the plaintiff cannot persuade the jury by a preponderance of the evidence that the defendant caused the plaintiff’s injury, the plaintiff loses.
Sure it is. It’s a weak correlation, but a correlation nevertheless. It would not, standing on its own, be legally sufficient to form the basis for a plaintiff’s verdict, but it is probative of causation and would be admissible.
Absolutely. The question is whether epidemiological evidence should be a requirement in these sorts of cases. It is not currently a requirement, I think largely for practical reasons. Who does the study, how large does it have to be, and do we really want to force sick people to pay millions of dollars for such a study before they can even get inside a courtroom? Still, my impression is that trial judges and appeals courts are getting very skeptical of plaintiffs with novel disease claims who don’t produce some epidemiology to back it up.
It is. Of course, the plaintiff doesn’t have to produce conclusive evidence of causation to get the case to the jury, but they do have to convince the judge that there’s enough evidence that a reasonable jury could conclude there’s causation. After that, it’s in the hands of the jury.
Sure, but any lawyer who took the case would be an idiot, because it would get immediately thrown out of court. But if you’ve got the money to piss away and can find an idiot lawyer, go right ahead.
A recent study (Yale) put the cost of tort litigation in the USA at 2.2% of GNP, vs. 0.8% for the UK, and 0.5% for Japan. So, it indeed costs us a great deal of money to have our 750,000+ lawyers running around in $5,000 Brioni suits, and driving Mercedes-Benz s500s. More to the point, out standard of living would be measurably more than 2.2% higher, if we could limit the activities of the legal industry-having these people amounts to a self-imposed brake on productivity.
Yes, maybe some litigation is essential, but not 2.3% of our GNP!!
Did that Yale study have anything to say about what Muffin brought up a few posts back about how other countries shift the costs of product injuries to socialized care rather than litigation? My point being that victims are a whole lot less likely to sue if their medical bills, lost wages, etc. are already being taken care of by someone else.
Besides, I prefer the David Boies, Sears mail-order catalog look. 
Hey, wow, that’s impressive, Muffin!
[Note to self: avoid appearing in court in Thunder Bay.]
egkelly, do you have a cite for that study? I’d be interested in looking at it.