Reforming the legal system against stupidity, why is it so hard?

Great Debates
101

Well, I asked about, and commented upon, a whole host of tort issues, I think these were your responses, which address only a few of the topics I raised…

If you are going to say we need to cap fees, you should offer at least some kind of idea about how to do so. (Incidently fees, in cases where fees are awarded by the court, are capped by the market rates for the work performed, i.e. a lawyer does not get to ask the judge for some random dollar number that he pulls out of thin air)

I think I tried to explain why contingency fees are important. In most cases like those we have been talking about here the plaintiff’s lawyer will be working on a contingency basis. The plaintiff does not have the cash to pay on an hourly basis. The contingency system serves several functions. First, the attorney has the incentive to only take cases with merit, (YOU SHOULD LIKE THIS!) since he is only going to get paid if he wins. Secondly, he has the insentive to work efficiently and aggresively on behalf of his client. Third, the client knows that he is going to be well represented by the attorney, since both of their financial stakes are linked. Please provide a suggestion of how these goals can be met with another system.

Could it be that we give the jury a chance to get it right the first time, and only then ask a judge to adjust the verdict? Why do you think that a judge would be any better than a jury? Since you are the one arguing that the system needs reform, the burden is on you to show how these reforms would make things better. Please tell me why you think a judge should replace the jury. What oversite do you want? At one point I suggested that juries should not be of lay people, but experts in the field, what about that? What about using a three judge panel instead of a 12 person jury?

If we have gone too far, what would you do to correct the problem?

I find your responses to be vague and fall well short of addressing any of my questions. You are long on critisism, but short on suggestions for reforms. Torts is a pretty damn old part of the law, and people far smarter than anyone here have written thousands and thousands of pages on the subject. Our system reflects those insights and 100s of years of experience.

If you are going to argue that the system needs changes (which it might) there is a tremendous weight of authority and history and practice stacked against you, and the burden is on you to provide concrete suggestions and reasoning why all of that history should be overturned. So far, IMO, you have failed to do so.

102

ok, my spelling was bad, even by my low standards, in that last post. It is late, and I have to finish my reading for my Torts class first thing tomorrow morning, please forgive me :slight_smile:

103

I haven’t been invited to a fight since the seventh grade. Which reminds me, don’t wear soft metal rings if you are planning to hit me in the jaw, your ring will bend before my jaw breaks.

I thought I indicated generally that I loved juries and that there were checks and balances for runaway juries. But if we want something livelier, let’s go Crit on yo silly white asses:

The system is not meant to be reformed against stupidity, it is a power tool of the establishment used to reinforce the status quo in virtually every instance, and during rare failures, those failure may be exaggerated and distorted by summaries that call for further erosion of the rights of the people in the name of reform that won’t really happen, but the repetition of those imagined ills in the media will make the masses more than anxious to cede their liberties to the faceless bureaucracy in other areas.

104

Hmm, how did that happen? I wasn’t done yet.
I’m not sure that I agree with that, but it certainly is interesting food for thought.

“Sitting in the woods and snipe at stragglers” is kind of a sore subject these days, and not yet appropriate for humor or insults.

If there is any specific subject that I am being asked to weigh in on, let me know, like most SDMB’ers, I have only one asshole, but an infinity of opinions.

105

Please rephrase this. As I understand you, you’re arguing that all we need to do is have defendants admit their liability, and everything would be fine.

Well, yeah, if all the plaintiffs and defendants in the world were raised by Mike and Carol Brady.

Once again, HH, you appear to be using phrases whose meaning you do not understand. "Default Judgments’ (BTW, there is only one “e” in “judgment”) occur when the defendant, having been duly notified of the lawsuit, fails to respond to the lawsuit.
If a defendant responds to the lawsuit, a default judgment is not entered, even if the defendant fails to refute the claim.

HH, you are starting to sound like my boss - who thinks he speaks the language - in an Italian restaurant. This thread has made it crystal clear that you do not have a basic understanding of the system you are criticizing.

And it’s getting very frustrating. As a strong advocate of tort reform, I gotta tell you that I hate having “allies” like you. Go read a book or two.

Sua

106

I think that you mean this in a more limited circumstance than I am replying to, but you should know that it is nearly impossible to prove a products liability case without discovery of the defendant. It’s through this discovery process that plaintiffs learn how a defendant knew it made a defective product, or knew that its warnings were inadequate.

I don’t quite understand this:

It’s not a game if they give me almost every relevant document (meaning they get to keep privileged ones) and hope that I can’t find needles in a million page haystack. A defendant isn’t under an obligation to prove a plaintiff’s case for a plaintiff.

By this, I hope you mean that after a plaintiff has met his burden of proof that a defective product caused his injury, and after the defendant met his burden of proof showing that the plaintiff assumed the risk of the defective product that caused his injury, then the defendant wins. But, that’s the way it is now. Troubles with AoR is that the defect is often hidden, and it is difficult for the consumer to fully appreciate the risks of a defect in order to have assumed them.

107

Sua -

Having had a default judgment entered against me (last time I used that lawyer), I know what one is. Maybe there is a way to respond to a suit without refuting it? IOW, a response = a refutation.
(my experience - do clients ever respond by saying ‘I did it’ to simply every allegation?)

And yes, I realize we will continue to play ‘hide the facts until you are ordered to produce them’. I think it is a silly way to spend the client’s money, but that’s the way the adversarial system works.

108

I don’t follow you.

Do you think a client would rather produce damning evidence or pay a legal fee? How is that a ‘silly’ way to spend money? Often fighting discovery is a way to save money, a plaintiff may ask for ‘everything’ which could be millions and millions of pages of documents. The defendant wants to force the plaintiff to be a little more specific. What is wrong with that?

109

Practically speaking, you don’t respond to a lawsuit in which you acknowledge your liability. You have your attorney call up the other side and say, “where should we send the check?”

That being said, there are cases where you would file an answer that admits that everything the plaintiff alleges is true, but in which you would deny liability. The denial of liability would be on one of two grounds. First, that the complaint doesn’t set forth a cause of action. (“Yes, I admit that while walking down the street, I called the plaintiff a jerk after he bumped into me, and that, as the plaintiff was staring back at me while walking away, he walked into a streetpole, injuring himself. I deny that those facts mean I am liable for his injuries.”) Second, where you have an affirmative defense (“Yes, I admit that I ran a red light and hit plaintiff’s car, causing him and his car injuries. However, I’ve already paid the plaintiff $100,000 and he released me from liability.”)

The problem is that that’s going to be the way any system is going to work. If a defendant is liable to you, but doesn’t want to pay you, he/she is going to try to hide the damning evidence, regardless of whether we use an adversarial system, mediation, meditation, or pistols at dawn.

Sua

110

Every response I’ve seen refutes the assertions made in the complaint. This is why I consider a response a refutation.

Secondly the only way I can see that response would not be a refutation would be to have specify that every charge in the complaint is true, but why would such a response ever exist?

Yes, it is simplistic to believe that the parties would offer the evidence the opposing side would like to see. Conversely, if we assume that, through discovery, they are going to get them anyway, what’s the point?

I would draw the analogy of a suspect trapped in a building with no hope of escape, the SWAT team snipers looking for a shot, water disconnected from the building - it is a foregone conclusion that the suspect will emerge from the building in the custody of the police - the only matter in play is when, and in how many pieces the suspect will be when he is brought out.

Take the mower case - mfg should just offer the design specs of the blade, its attachment, the results of its testing, and any reports it has of deviations in the manufacturing process which might have caused the blade to fail.
The plaintiff should acknowledge that he did not police the area, even though he had previously run into stones while mowing the area, he had been drinking all afternoon, etc.
Just get the germain facts out there, then discuss settlement.
(I can hear the lawyers scream as I type this - “sleeping with the enemy!”).
I can dream - and such disclosure would speed up the process, reduce costs (having the engineers intelligently assemble 500 pages would be quicker than having them deliver a U-Haul load, and make plaintiff sort the mess, and having the plaintiff admit that he had been drinking, had hit rocks in the area, whatever sure beats trying to find a nasty neighbor to rat him out).
It might also reduce confusion of the court, might not.
And yes, I would love to see juries comprised of only those with knowledge of the matter at hand, but counsel generally seems to oppose that, and somebody would bring a constitutional challenge to any such requirement.

Try this - if you are plaintiff in a dog-mauling case, would you be more or less enthusiastic about impaneling dog breeders?
My guess - you would prefer to have a jury with no prior knowledge - so you can tell them what (you think) they need to know via expert witnessess (who, amazing enough, support your position), previous cases (which just happen to support your position), etc.
And, as I seem to be getting a whole bunch of “you don’t understand”:
Yes, I know that defense also gets to present its expert witnessess, previous cases, etc., and the jury is going to be able to decide which side has established a preponderance of evidence, and rule accordingly.

Yes, that would be nice - and if that is how it always worked, we wouldn’t be looking at reforms, would we?

111

“Deny” =! “Refute”

112

Sua -

In the first case, would this not be a prime candidate for summary dismissal? OK - my bad, I did not consider that such a response would need to precede the motion to dismiss.

In the second case - if I had secured a valid hold-harmless agreement and he still sued, would his action not be a tort in itself?
If so, I would be looking at a counter-suit - OK, still, I would have to respond to plaintiff - but would that be done with a response or some other document?

*Minty -

Sorry, IANAL - I should not have used “refute” as a synonym for “deny”, especially in a discussion of law. I apologise.

<hijack>
I just picked up an old complaint (CA Superior, Limited Civil Jurisdiction (read: Municipal)).
It contains a sworn statement by counsel that the information in the complaint was factual.
The informantion in the complaint was not factual (they dismissed as soon as they received a form interrogatory).
Is plaintiff’s counsel subject to any disciplanary action arising from this sworn lie? Even in theory?
</hijack>

113

OK, HH,I have read the Cleveland v. Piper Aircraft case [985 F.2d 1438, 10th Cir. 1993]. This was the 10th Circuit’s second shot on the case. It had initially been tried in the New Mexico Federal District Court sometime before 1989. In that trial the jury had come back with a verdict for Cleveland of some $2.5 million which the trial court reduced to $1,042,500. The trial court was appealed and the 10th Circuit Court reversed the case and remanded it because the jury was not allowed to apportion fault between Piper and other (unnamed) responsible parties.

On the retrial Piper was allowed to amend its answer to claim that Federal statute and regulations preempted the New Mexico common law applicable to the incident. The trial court, however, over ruled Piper’s motion for summary judgment on the Federal preemption issue, that is, the trial court declined to rule as a matter of law that the Federal Aviation Act of 1958 controlled the case and that Cleveland could have no recovery under the Federal statute’s provisions for aircraft safety equipment. Piper appealed the trial court’s decision on the summary judgement motion before the second trial took place. The principal issues on the second appeal were the preemption of New Mexico common law by the Federal statute and whether the retrial jury could recompute the damage award.

The facts recited in the 1993 decision are pretty sketchy. The Court’s ruling in the first appeal is not available to me because it is too old for Find Law and because I am to cheap to go to my $4.00 / minute online library to find 890 F.2d 1540. It looks as if Cleveland was flying a two seater Piper Cub with the seats one beside the other instead of side by side. A camera had been installed in the front seat and Cleveland was piloting the plane from the back seat which had controls. The plane was pulling a glider. While the modifications to the plane had been done by a FAA certified mechanic the airport manager was spooky about the whole thing and closed the strip. When the airport operator observed that Cleveland was going to try to take off anyway he parked his van on the runway to barricade it. Cleveland attempted a take-off none the less, ran the plane into the van and suffered serious head injuries when he came out of the back seat, which did not have a safety harness, and ran his head into the camera in the front seat.

The claim against Piper was that the aircraft lacked adequate vision from the rear seat and that it was not crash worthy because of the lack of safety harness for the rear seat. Crash worthiness is a very complex issue and all I know about it is that it is something that I am not trained or equipped to handle. The jury had decided in the first case that the plane was not crash worthy—apparently because of the lack of a rear seat safety harness. On retrial the case was to be resubmitted to apportion damages between the responsible parties.

The responsible parties, you would think, were Piper for the design and manufacture of the plane, the airport operator for blocking the runway and Cleveland himself for trying to pull such a damn fool stunt (assuming he knew that the runway was blocked).

We don’t know how the case came out in the end. We don’t know if the jury ever got the damages case or if it was settled. If the jury did get the case it may well have decided that all of the fault was to be born by Cleveland and the air port manager and that Piper did not contribute to the injuries because Cleveland was going to be messed up whether he had a shoulder harness or not. We just don’t know. All we know is that the first jury said that Cleveland’s damages were worth $2.5 million, the trial judge reduced damages to something just over one million, that damages were going to be reassessed and apportioned and that the Aviation Act does not preempt New Mexico common law when it comes to installing shoulder harness in general aviation air craft.

Unless you are prepared to argue that Cleveland’s injuries, the cost of his medical care, the loss to his family, the value of spending the rest of his life with a scrambled brain, were not worth what the first jury found them to be this case has precious little to do with this thread. About all you can do is say that you would have denied Cleveland any recovery –but you don’t know the ultimate out come of the case, not based on this opinion.

I.A.Sparticus, if you have ever been a soldier you know the general low regard held for the soldier who falls behind the firing line to lurk in the tree line to take random pot shots to his front from a position of relative safety while the rest of his unit is in the fight. Don’t try to read more into my attempts at sarcasm that is there.

114

SG -

Welcome to the discussion of Cleveland.

This (and another case which I have been unable to locate) were the poster children for the 1994 General Aviation Revitalization Act, which imposes an 18 year statue of repose on liability torts arising from the sale of general aviation aircraft.

This case is wrong:

a) it is the job of the FAA to decide airworthiness of a design (crashworthiness is a subset of the certification criteria). Juries should not go there. I hope the Aviation Act has been amended to specifically preclude any future cases.

b) the decision that the blind characteristic of taildraggers (“limited forward visibility”) constituted a defect is laughable on the face of it (BTW, the PA18-150 is still in production - it is one of the most respected utility planes extant).

c) the decision that anything other than AoR is iffy. IF anyone other than Cleveland was liable it was:

i) the mechanic - the installation of the camera mount would require him, as a licensed agent of the FAA, to “sign-off” the modification. By doing so, HE is now the one certifying the design as safe for return to service (this is done by a logbook entry, and the filing of a form 337, which then becomes part of the aircraft’s FAA file (yes, the FAA has a file for every damned plane licensed in the US)).

ii) the owner, for blocking the runway. BUT - he, as the owner of a private strip, can declare it closed at any time, with or without cause. Once he declared the strip closed, that chunk of pavement was no longer a runway - he was free to use it a a parking lot, flea market, drag strip - whatever. Maybe if you could show his intent in placing the truck on the strip was specifically to cause injury, he could be held liable.

So yes, this case IS a classic example of “Why We Need Tort Reform” - Piper had the deepest pockets, so the jury decided it MUST be liable. Wrong!

(the other poster child, btw, involved a family of four which burned to death when their plane crashed. Despite a report that there was NO evidence of engine failure, the jury held the engine mfg liable (IIRC, the aircraft mfg no longer existed)).

115

Head, meet wall. Commence banging.

HH, compare and constrast this quote from you with this quote from Gelding

On other points:

No, it is the job of the FAA to do that which Congress authorizes it to do. And Congress did not authorize the FAA to have exclusive jurisdiction over issues of crashworthiness. The act in question contained a “savings clause” -

Congress, which is the arbiter of the authority of the FAA, decided that New Mexico (and all the other states) could still apply its own laws and rules to the issue.

You may think it is best for the FAA to have that job exclusively, but in that case, your beef is with the legislature, not the jury.

Um, 10th Circuit agreed (at least to the extent that persons other than Piper may share liability - or even have all of it) and sent the case back for retrial to apportion liability. There was an error made, and the error was fixed by the appellate court.

So, this case is not an example of the need for Tort Reform. It’s not an example of anything, because we don’t know how it came out.

Sua

116

HH Here is another one for you, ‘ripped from the headlines’
Woman gets $2.2B for diluted cancer drugs

117

Happyheathen, my misinformed friend, you have done it again—now you appear to want to argue about, not reform of the civil tort system, but the great issue of Federal preemption of State law. The basic fact is that Cleveland v. Piper Aircraft is not a case about assumption of the risk in products liability cases but rather is a case about the preemption of State law by Federal Statute and authorized regulation. That second issue was dealt with by the Circuit Court as a matter of Congressional intent as found in the four corners of the statute its self. You may say that the decision was wrong. Since Piper Aircraft did not appeal the decision we will never know. Quite frankly your opinion on questions of Federal preemption does not fry many parsnips. If you want to start a thread on Federal preemption of State law, be my guest.

On another topic, while rare it is not unheard of for a party to admit the allegations of the other side’s pleading. When it happens it is often in a case where the defendant is willing to concede liability but wants to fight about damages. For instance, I run a stop sign while traveling at unreasonably and unlawful high speed, while drunk and while groping under the seat for my crack pipe which is wrapped in an autographed photo of Osama Bin Laden, and I run over your dog. You sue me claiming that Blue was a good old dog to which you were unusually attached and for the death of which you want to recover $250,000.00. The last thing in the world I want a jury to here is all the circumstances of the demise of Old Blue. But I do question whether your flee bitten, sorry excuse of a dawg is worth any quarter million dollars for any purpose. What I do is file an answer admitting that I was at fault but denying that you have suffered any damage. A silly hypothetical? Yes, but I trust you get the point.

Summary judgment motions are unsuccessful more often than not. As a recently retired trial judge once told me, “Spav., you never get reversed for denying summary judgment.” None the less, frequently a party will move for summary judgment as a cheap discovery device, to force the opponent to disclose their theory of the case, their witnesses and what they are going to say before going to the considerable expense of depositions and production.

118

Point of Order, SG. Somebody did appeal, though I’m not sure who. The Supreme Court denied cert. 510 U.S. 908 (1993).

Sua

119

Cleveland was about torts - product liability.

Edward Cleveland brought suit against Piper for injuries he received in 1983 while piloting a Super Cub airplane, which crashed during takeoff. He alleged he suffered severe injuries due to the negligent design of the plane

the supremacy/preemption argument was IIRC. raised by Piper in a motion for dismissal/reversal

re. tort reform

my point (umteenth time, for those who have lost count) is that this was an “out of control” jury.

the fact that an appellate court remands a case does NOT mean that there is not a problem, it simply means that a mechanism to fix the results of the problem exists.

IOW:

The fact that a jury gets it wrong means there is a problem.
The fact that, on appeal, the jury is corrected is a nice thing, but I would rather see the jury avoid errors.

and really, do the legal minds here REALLY think having any jury, anywhere, anytime retroactively being able to review something as complex as aircraft design is a GOOD thing?

and: when/how/why did this turn into a “forget tort reform, let’s slam HH’s cites”?

anyway: AoR, limit fees, limit admissable evidence and/or possible findings (yes, I’m really pissed that a jury thought it could rule taildraggers ‘defective’), cap “pain and suffering”, and keep crippled kids away from jurors.

as to OP “Reforming the legal system against stupidity, why is it so hard?”

because lawyers, by and large, like the way it is now.

show of hands:

how many lawyers here believe tort reform is needed?

how may lawyers here thing HH should be summarily shot?

which is the greater priority?

120

Find the appellate opinion on Findlaw. Read the freaking thing.
Put it down. Read it again. Put it down. Read it a third time, with Webster’s and Black’s Law Dictionary next to you.

The jury did not commit an error. The judge gave the jury erroneous instructions. The jury, as they are required by law, followed the judge’s instructions.

Yes.

To try to combat your ignorance.

  1. You believe tort reform is necessary;
  2. Your belief is premised on putatively outrageous court decision.
  3. You present several of them as support for your argument.
  4. We notice that your cites do not support your position.
  5. It becomes apparent that you do not understand your own cites.

I’m starting to feel like Inigo Montoya.

As I asked you before - educate yourself on the issue. Tort reform is needed, but it will never come about if advocates for it can be laughed aside because they are ass-talking on the issue.

You, sir, are ass-talking.

Sua

Sua