My answers to questions #1 and #3 are “Yes” and “No,” respectively.
We need tort reform because the societal cost of tort liability suits far exceeds their value. They are not effective at meting out just punishment. They are enriching a small class of people.
We won’t get it because the Democratic Party is under the control of the plaintiff’s attorneys, and enough Republicans are too, so that there is an anti-tort reform majority in Congress.
We won’t get it because the issue isn’t high enough on Bush’s agenda.
Regarding question #2, useful tort reform could include:
– caps on non-economic damage (punitive damage and “pain & suffering”)
– severe restriction on punitive damage (Note that punitive damages can be assessed in arbitrary amounts, without limit as to amount and without limit as to frequency.)
– “loser pays” or the “English Rule” – loser pays the other side’s legal expense.
– rationaizing of class-action suits, which are now out of control
– tightening the definition of a tort, so that simply being a deep pocket doesn’t make one liablbe
– changing awards from “joint and several,” so as to be more fair to those “deep pockets” who are not at fault or are minor tort-feasors.
Our economy needs these reforms. Fairness demands these reforms. But, I don’t think they’re going to happen.
I hate to say it, but you’re probably correct. I like the idea of a system where more emphasis is placed on personal responsibility and less on litigation. I feel that the system as is, is so deeply entrenched that nothing short of thermonuclear war will change the status quo.
Give me a petition to sign, I’ll sign it. Show me who to vote for, I will. But I’m with you- I don’t think we can pry out the cancerous portion of the legal system without killing the patient at this point.
Punitive damages are supposed to punish the defendant for having committed a flagrant tort. Fair enough. Only problem is, the punitive damage money is awarded to the plaintiff, which creates an incentive for plaintiffs (and their “I get 40%” attorneys) to try and squeeze every penny of punitive damages out of the system as possible.
What if, instead, the punitive damage money was awarded to the court, or to the state or local government in some way? Or, if that scenario makes you worry about governmental abuse, what if the punitive damage money was required to be given to a charitable organization of the plaintiff’s choosing?
I support tracer’s idea for punitive damages. I don’t think plaintiffs should get rich off them, since quite often the plaintiff is at least partly to blame for the injury.
It’s interesting that proponents of liability limits so often wave the banner of personal responsibility. It seems to me that many tort-reform proposals are aimed at shielding people from responsibility from malfeasance or negligence.
I think compensation for pain and suffering is a valid concept, if problematic in implementation.
I have no desire to address the rest of your post, but this statement is just complete and uttter bollocks. Tort law is, in many ways, a remarkably inefficient method of securing compensation for persons who suffer harm at the hands of others, but there is no reasonable argument whatsoever that current tort law is better than no tort law at all.
Had your car smashed up by a drunk driver? Get sick from e. coli infected meat? Asbestosis? Fuck you, you get nothing. It’s more efficient that way. :rolleyes:
There’s a lot in the OP that IMHO represents an overly simplistic view of the legal system. If I get a chance, I’ll try to respond more fully, but I’d like to tell a little story, as a plaintiff’s lawyer.
A few weeks ago, I was on the telephone with a defense attorney. I had just filed a complaint against his client (after my demand letter was ignored). Anyway, the defense attorney basically said “yes, you’re in the right, and you’ll probably win in the end, but to get your money we’ll make you litigate this for years; we’ll depose your clients for days; we’ll drive up litigation costs, etc. etc.” Of course there was some truth to what he was saying, and my clients ended up settling for something less than what the claim was worth.
This problem - defendants who refuse to pay valid claims promptly and in full - is a big problem IMHO. I would consider increasing the availability of punitive damages.
Uh, minty, I think december meant “right now”, not “in general.”
Apart from that, on tort reform: tracer’s idea is a good one, since punitive damages aren’t intended to compensate anybody, but to punish them, or at least that’s my understanding (IANAL). Thus it shouldn’t be the plaintiff who enacts and profits from the punishment, but society, i.e. the courts.
Can someone outline, quickly, how “mental anguish” or “emotional distress” work in torts? (Is this even possible?) Because if I can sue someone successfully for making me feel crummy, I might want to have a word with my ex-girlfriend… but I don’t really think that’s how it works, is it?
december, out of sheer curiosity, what makes you say that the Democratic party is run by plaintiff’s attorneys?
Mental anguish or emotional distress generally has to be pretty sever, beyond mere “vexation, worry, or embarassment.” Just getting your feelings hurt or feeling bad won’t be enough. Medical attention for emotional problems is looked for, although not strictly necessary.
It sounds like a good idea, but the problem is that the court doesn’t have a dog in the fight. We rely on the adversarial system to resolve our differences; if it doesn’t benefit the plaintiff, why should he/she go to all the extra trouble to show that punitive damages are warranted? And it is a lot of extra trouble, because you have to establish a much higher showing of culpability on the defendants part than you do for mere compensatory damages.
Sometimes settlements do involve donations to charities or charitable work, but again, that’s the decision of the plaintiff.
Cite? A real citation with real numbers arrived at through an objective and impartial analysis?
FTR, I am in favor of removing or sriously reducing “deep pockets” approaches to tort. The idea that one may be punished merely for possessing funds is pretty ridiculous.
“Loser pays,” of course, is simply a way to protect rich people and corporations from ever being sued by poor people. I find it interesting that you support it.
Every time this topic comes up I am reminded of a New Yorker cartoon from a few years ago. The view is of a corporate board room with the board seated. The chairman is proposing a resolution. “All in favor of limiting our liability, raise your hand,” he says. There is the impetus for tort reform in a nut shell.
Those of you whooping it up for tort reform (which inevitably turns into a scheme or device to deny full recovery to people with legitimate claims) and whining about an overly litigious society, how do you propose to deal with the child rendered permanently retarded because the ObGyn people made an obvious mistake during delivery. Do you tell the devastated parents that the majesty of the law says that they can get the kid’s medical expenses but that their heart break, the child’s lost chance at a productive life, the worry about what happens to the child when he is an adult and who will look after him when the parents are dead and gone, the parents’ devotion of the rest of their life to looking after the child are all matters which are not compensateable? Do you tell the people who have just been run over by a Wyerhauser Lumber truck that they have a good claim but sometimes juries do funny things and if they lose they have to pay Wyerhauser’s expenses for their income clerking in an all night convince store.
Tort reform, at least the broad movement, is simply the effort by big business and big insurance to escape responsibility. And don’t tell me about the McDonald’s hot coffee case - that one has been throughly debunked - or the guy cutting hedges with a lawn mower - that one was made up by some insurance PR firm.
Please! The bitch is over insurance rates. Do you suppose that might have more to do with the refusal of medical authorities to police their own ranks and the insurance companies’ need to show a profit in the face of the implosion of the stock market than with paying fair and appropriate compensation?
Anecdotal evidence: A friend of mine recently retired after 30 years of defending medical malpractice cases. He said that one of his regular clients had just been listed in some list of the 100 worst doctors in America. My friend had defended him in twelve cases and gotten a defendant’s verdict in eleven of them. Of course, said my friend, he should have lost all of them but he was always able to fine other physicians who would say that his client, the incompetent butcher, had done every thing right and the jury had bought it.
Now, how much do you suppose it has cost hospitals and other doctors to defend this guy and keep him in business? It seems to me that denying justice to anyone is too high a price to pay to allow doctors to pay the malpractice premium they are willing to pay.
“Loser pays” sucks. I used to work for a workers’ comp/PI law firm (IANAL, it was a summer job as a Spanish interpreter in college). This firm has an excellent reputation, and the founding partner has helped shape the worker’s comp system here in Illinois. These people are NOT sleazeballs; many cases they took involved low-income blue-collar workers with disabling injuries.
Do you think that if a $6/hour, non-English-speaking person with a 5th-grade education who loses a limb in a workplace accident and may not be able to find productive employment ever again should have to pay the legal bills of the manufacturing company where he lost the limb, because the case fell a bit short of the evidentiary standard needed for a plaintiff victory? If so, how do you propose that the guy come up with the money, preferably without starving to death or robbing banks? If you’re reconciled to the idea that many plaintiffs won’t be able to come up with the money to pay the defendant’s legal bills, then what’s the point in passing the legislation to begin with?
There’s another area of the legal system where extra culpability is sought after against the defendants all the time, even though the wronged party doesn’t get extra benefit out of it. I’m speaking, of course, about the criminal justice system. Why should the prosecution seek punishment against the defendant, when the prosecution doesn’t get any money out of the deal? Why should the government seek punishment against the defendant, when the government will only end up paying more to house a convicted defendant in a jail or prison?
Because there’s an office called the district attorney, created by statute, that exists to convict criminals. The district attorney is rewarded in some way for obtaining convictions.
If punitive damages were awarded to charity instead of to the plaintiffs, we could create an office called the district punitive damages attorney or something, whose job it is to seek punitive damages in the most egregious cases.
In such a case, the person would almost certainly declare some form of Bankruptcy. Although the U.S. bankruptcy laws have changed in recent years so as to reduce the amount of protection they afford, I believe a poor person could still manage to use the Bankruptcy laws to avoid having his wages garnished.
As other people have pointed out, the above is nonsense.
**
In principle, I don’t have a problem with capping punies & p & s, but as a practical matter, there is a big danger that such caps would go too far towards protecting big companies/insurers/etc. I also question whether such reforms are necessary for the good of the economy. Can you give some examples of some excessive punitive damage awards that were sustained and affirmed by the court system and actually paid by the defendant resulting in destabilizing damage to a viable and worthy business?
As other people pointed out, such a rule would be pretty lame. It would deter people from bringing anything but open and shut cases.
**
Can you give some specifics as to “out of control” class actions? Would you care to offer some specific proposals? Can we agree that if a greedy company screws 100,000 customers out of $2.50 each, a class action might very well be the only viable remedy?
**
Ummm, how is a tort defined now and how would you change the definition? Do you honestly believe that “simply being a deep pocket” is sufficient to support liability?!?
**
I don’t have a problem with this, as long as it’s done fairly.
**
Please consider the fact that due to the liberalization of American law, including the liberalization of tort law, the United States is far far safer and fairer than it was 100 years ago. In the past, it was much more common for people to be seriously injured in industrial accidents; stranded on sinking ships that had inadequate numbers of life boats; seriously injured on improperly maintained amusement park rides; etc. etc. What value do you place on these improvements?
Eva – the workes compensation system is the poster child for tort reform. WC was esteablished in all states around 85 years ago to give injured workers a scheduled benefit regardless of fault, without the expense and uncertainty of litigation. It has been a most successful system. Some states have allowed litigation to creep back into the system. Illininois is one of the worst, in this respect.
tomndebb societal costs are a judgment. Here’s how I look at it. Tort law was developed to serve society in several ways[ol][li]To deter wrongdoing by punishing the wrongdoer.[]To compensate needy victims and make them whole.[]To provide justice.[/ol]Consider how this works with auto insurance:[ol][]The wrongdoer is not punished, because insurance covers the loss, and because it’s usually hard to accurately allocate fault.[]Studies (e.g. by Professors Keeton and O’Connell) show that the tort system tends to under compensate those with serious injuries and over-compensate those with lesser injuries. It’s a much more expensive system than pure 1st party coverage would be. [/ol]Most people agree that an limitied (or nearly unlimited) no fault system would serve the public interest better.[/li]
Asbestos claims continue to be paid quite unjustly. Often, the gorup of workers who collect includs many with no injury or disability. Those who pay include companies who used asbestos before the risks were known. However, lawyers are making a fortune off these settlemenst.
Municipal claims punish the public for alleged negligence of city employees. In New York City, many of these claims are fraudulent. But, even the valid claims raise the question of whether taking money from school children or welfare recipients is really the best way to deter negligence by public servants in other departments.
Ulterior, I have seen a list showing that plaintiffs attorneys are the largest single source of donations to Democrats and the Democratic Party. I don’t have a cite right now, but will look for it when I have more time.
Spavined Gelding, it is true that tort reform is being sought by businesses and insurance companies – both large and small ones. However, they pass their liability costs on to the public. Ultimately, you and I are paying for these claims in higher product prices and in higher insurance premiums. And, in some cases, the costs are so great that products and services are being driven out of existance. E.g., diving boards are harder and harder to find.
I can live without diving boards, although it’s a shame to give them up. However, I can’t live without obstetricians. Their tort liability costs are a particularly urgent problem for society to deal with.
<<how do you propose to deal with the child rendered permanently retarded because the ObGyn people made an obvious mistake during delivery. Do you tell the devastated parents that the majesty of the law says that they can get the kid’s medical expenses but that their heart break, the child’s lost chance at a productive life, the worry about what happens to the child when he is an adult and who will look after him when the parents are dead and gone, the parents’ devotion of the rest of their life to looking after the child are all matters which are not compensateable?>>
Sure they are. Nobody’s suggesting we limit compensatory damages. The cost of care for a handicapped child can be reasonably quantified–it will probably take an endowment of a couple of million in this case–depending on the medical expenses involved. Throw in a few hundred grand for ‘pain and suffering.’
Nobody hurt the baby on purpose, and willful negligence is unlikely. So there doesn’t seem to be a need for punitive damages in this example.
Nobody is saying these things aren’t compensateable.
But unquantifiable pain and suffering needn’t be compensated at such a level as to penalize an entire industry–doctors, for example, who often wind up paying the cost–to the point where doctors finally stop providing needed services.
