Tort reform: Yea or Nay. (Reccomended reforms solicited.)

Great Debates
21

[QUOTE=OtakuLoki]
In the wake of the case of the $54 million pants, I figure it’s about time to bring the idea of tort reform back up for the Teeming Millions to offer their sage advice and views.

I’m going to being by putting out the follow things that I believe to be facts:[ul]
[li]The protections that currently exists for plaintiffs pursuing lawsuits that may be frivolous seem to be a bit high for a matter of balance. The expression I’ve heard, and even used, here on the Dope is that if you can meet the lawyer’s fees and court fees, you can sue anyone for anything. [/li]
[li]Anyone going into any court situation beyond small claims court planning to defend themselves has an idiot for a client. [/li]
[li]Being served for a frivolous lawsuit can happen to any legal entity: a person, a small business, or even GM. (The possible exception to that seems to be the various statutory protections for governments, which seem to be only partially effective.) [/li]
[li]Acquiring competent counsel for any kind of lawsuit is expensive. It may be less expensive for John or Jane Doe defending against a lawsuit claiming that their Mulberry tree is the font of evil and keeping their neighbor from sleeping at nights than it was for the Chungs, but it’s rarely an insubstantial cost. [/li]
[li]Frivolous lawsuits often take years to litigate, compounding the costs mentioned above. [/li]
[li]Class action lawsuits sometimes seem to provide no benefits to the class being represented, just to the lawyers involved.[/li]
[li]People have been harassed and destroyed using the legal system to act as a sort of bully forcing them to spend time, money and effort to defend against seriously warped views of reality. This is done both by individuals and by corporations, IMNSHO. The hugely inflated damage claims by the RIAA seem to be only a little less gross an abuse than the damage claims that Pearson made in his pants case. [/li][/ul]

Given these issues, can anyone offer support that they aren’t really problems?

If there is a general concensus that they are problems that should be fixed, what proposed reforms do the Teeming Millions support?

I have a certain fondness for the idea of making it easier for the courts to award damages and representation costs to the victims of frivolous lawsuits. But at the same time I can see just how chilling an effect that could have on what I’d consider to be legitimate lawsuits. To wit: Not only does a large corporation like GM have the deep pockets to afford superlative representation, but if one were to be socked with their representation costs, there’d be no way to get out from under that kind of levy.

Similarly, the other common “simple, easy” reform I’ve heard proposed is to cap awards. Which, again, has the problems of having to review the cap on a regular basis to keep up with inflation.

I’ve got no easy answers, people. I hope you can give me some that seem less fraught with risks.
[/QUOTE]

I’ve had occasion to testify at a number of tort trials as an expert witness, most in the medical/healthcare field.

There is little incentive for the legal parties involved on either side to streamline or reduce costs. Like medical care and government, there is an enormous inefficiency and the inefficiency is propogated because the money not spent on direct benefit comes to the pockets of the peripheral players, who also happen to control the structures underlying the whole system.

With the tort system in particular, the key unfixable component is the jury system. Complicated tort trials are not juried by folks qualified against IQ, contribution to society, or ability to grasp complex problems. The folks who sit on juries in some venues are often the ones who don’t have much else to do or who feel already oppressed by society and corporations and “systems” beyond their personal control. Tort lawyers seek out venues where the jurists are going to be undereducated and underfinanced in their personal lives. It is out of those venues that ridiculously-sized awards are made.

There are multiple other contributions, including a distrust of corporations and a general trend to avoid personal responsibility. But unless we filter for jurists with reasonable intelligence and a primary goal of the greater good of society (and that will not happen), the tort system will continue to run amok. It’s very common for the same professionals and business people who complain about the tort system to refuse their turn at jury duty.

22

[QUOTE=dennis gallagher]
I would take the opposite view in the folllowing situation and its brethren. It is my understanding that in the Ford Pinto case Ford knew that the car was unsafe due to the (mis)placement of the gas tank and that lives would be lost as a result. They did an accounting of the average award for lost lives and an educated guess as to the number of lives that would be lost and determined that it was more cost effective to suffer the lawsuits and not move the tank. I submit that in a case like this where serious injury and/or loss of life is a known potential result of a known flaw in a product, the failure to make a timely correction or recall of that product should make the company liable to the full extent of its worth. If that is too great an amount to give to one plaintiff or to divide among the many plaintiffs, the remainder could be put in to some kind of fund for victims of torts who are unable to recover for sustained injuries due to the defendant’s lack of funds. Further I believe that directors who approve such cost effectiveness or knowingly take no action to prevent it may also be sued individually.
[/QUOTE]

This is an example of how the tort system does not punish the appropriate people or accomplish the appropriate goal.
Assume your assertions are correct. You destroy the corporation awarding its entire net worth as a liability award.

The professionals running the corporation leave for other jobs. The workers employed by the corporation scramble to start a new life for the corporations which replace Ford. The shareholders lose their investment, including the retirees depending on Ford as part of their portfolio. All the lawyers get a big chunk of change. The ripple effects throughout the economy hurt a lot of people.

And what was the cause? One or two top decision-makers driving the decision. I agree: criminalize their behaviour and prosecute them. THAT will make the next corporation over pay attention to the decisions they make. There is no compensation, on average, that suffices for a human life. Therefore place an arbitrary value, plus an arbitrary punitive value, and standardize on that. There is no other way to reform a system so capricious that one wounded party gets nothing and the next hits a jackpot.

23

I had an idea many, many years ago that called for mandatory free assessment of each and every civil case that could potentially end up before a jury. That assessment would deliver no opinon whatsoever on any part of the case other than that the complaint was not frivolous. I’m convinced that there are cases that are eventually dismissed that are frivolous on the face of them, and it would take nothing more than a single read-through by a semi-retired county court judge to determine that frivolity.

The idea came to me when I was editor of the local newspaper. The paper, my publisher, myself and my reporter all were named among 35 defendants as having conspired to deny a local wing nut his civil rights. At the paper, our offense was publishing a story about the guy losing an equally frivolous case against someone else. We weren’t sued for libel, but for being part of an overall conspiracy to deny the wing nut some income he imagined he was due. He wrote the entire complaint himself because he couldn’t find a lawyer to represent him (there’s a strong hint right there that the case is a non-starter!) He paid the filing fees, served all the papers himself, and we had to spend $14,000 in legal fees getting the stupid thing thrown out. Because we weren’t sued for libel (asshat!) our legal insurance wouldn’t pay off – it had to come out of my newsroom budget, and it caused me to give no pay raises to my hard-working news staff for three years. Three fucking years!!!

So, yeah, tort reform? Count me in. The asshat’s legal action should have had to pass some kind of smell test before it cost me three years of pay raises for my staff.

24

[QUOTE=Nametag]
Judge Pearson arrived at his $54 million figure by applying the penalty structure of a local consumer-protection law. I’m not exactly sure how or why the law applies to his damages, but that’s where the numbers came from.
[/QUOTE]

Right. DC has a Consumer Protections Act, which imposes fines of $1500 a day for a violation. Pearson’s math was, “There are 12 violations, over 1200 days, times 3 defendents.” So $1500x12x1200x3=$64.8 million.

25

It does. At least in federal court, which is where all the tort reform proposals are directed.

26

[QUOTE=Gadarene]
It does. At least in federal court, which is where all the tort reform proposals are directed.
[/QUOTE]

I thought that there had been various successful tort reform initiatives that have taken place in several states. Forex, I seem to recall reading that California, at one point, had a cap on awards for individual pain and suffering. I agree that most tort reform proposals are intended to affect as large a system as possible, but I do think there have been several smaller scale reforms enacted and/or attempted.

27

Fair enough. My statement was overly broad. :slight_smile:

28

[QUOTE=Gadarene]
It does. At least in federal court, which is where all the tort reform proposals are directed.
[/QUOTE]

And that was part of the problem. Our lawyer was compelled to file a brief pointing out that the dipshit had filed his lawsuit in district court, not federal court, and that because one of the many, many imagined outrages for which he sought compensation was denial of his civil rights, the thing belonged in federal court. Apparently, Colorado’s 13th Judicial District Court in 1994 was unable to throw out a wrongly filed frivilous lawsuit until after all of the named defendants had filed briefs arguing that exact point. In our case, that no-brainer cost us $14,000 because we had to pay a lawyer to point out to the court something the court already knew, and just needed somebody say so it could agree.

What I’m talking about is a cursory review, before we even knew we were being named in the lawsuit, that would cost the plaintif nothing, and would determine that a suit was not frivolous. That would have saved us fourteen-grand.

29

No worries, Gadarene. I know that happens. :slight_smile:

FWIW, here’s a link that describes the effect of the tort reform law from California that I mentioned in post #26. And explains why the idea of imposing caps into the tort system seems a bad idea.

30

I think the idea of punishing the filing of frivilous lawsuits is great - but how to define “frivilous”? I think having a judge use specific criteria like any of the following: The petitioner loses and . . .

  1. Petitioner had no legal basis to file claim. I know that in many cases both sides have decent (but conflicting) legal arguments. This would eliminate cases like my wife that was sued by her ex-husband over a custody that was signed by a lawyer friend of his (i.e. not a judge).

  2. Petitioner suing for damages directly or indirectly caused by their commiting an illegal act. No more of a burgler suing over injuring themselves while breaking into someone’s house.

  3. Petitioner using suits as “blackmail” or for personal gain when no real damage is done. This would be the most difficult to determine, but sometimes it is clear that a person (and from the stories I hear, lawyers are the worst at this) tries to use the legal system to intimidate others. For example, according to Penn & Teller, an attorney sued all of the shops of a small tourist town for violating ADA - even those who were ADA-compliant. Bear in mind, if a person were actually damaged and won their case, it would not be a frivilous lawsuit.

Also, when it has been decided the a frivilous lawsuit was filed, the attorney for the petitioner must forfit their fees to the respondant. Thus no one benefits from the lawsuit except the person unfairly sued.

31

[QUOTE=SaintCad]
I think the idea of punishing the filing of frivilous lawsuits is great - but how to define “frivilous”? I think having a judge use specific criteria like any of the following: The petitioner loses and . . .

  1. Petitioner had no legal basis to file claim. I know that in many cases both sides have decent (but conflicting) legal arguments. This would eliminate cases like my wife that was sued by her ex-husband over a custody that was signed by a lawyer friend of his (i.e. not a judge).

  2. Petitioner suing for damages directly or indirectly caused by their commiting an illegal act. No more of a burgler suing over injuring themselves while breaking into someone’s house.

  3. Petitioner using suits as “blackmail” or for personal gain when no real damage is done. This would be the most difficult to determine, but sometimes it is clear that a person (and from the stories I hear, lawyers are the worst at this) tries to use the legal system to intimidate others. For example, according to Penn & Teller, an attorney sued all of the shops of a small tourist town for violating ADA - even those who were ADA-compliant. Bear in mind, if a person were actually damaged and won their case, it would not be a frivilous lawsuit.

Also, when it has been decided the a frivilous lawsuit was filed, the attorney for the petitioner must forfit their fees to the respondant. Thus no one benefits from the lawsuit except the person unfairly sued.
[/QUOTE]

We already have most of those provisions in Florida law.

32

I think the best reform would be to allow the attorney 9for the person filing a worthless lawsuit0 be open to criminal charges 9fraud, attempted extortion), should they lose the case. that would discourage these harassment-type lawsuits.

33

Well it sounds like we have at least three possible patches, though not complete fixes:

  1. All adult citizens must sit on X number of juries within Y years.
  2. Lawyers shouldn’t be able to syphon down the number of jurists to a smaller, less impressive bunch. (I.e. you’re stuck with the ones assigned to you)
  3. All legal cases are guaranteed council paid by the state, including civil.

I’m rather iffy about #2. Perhaps a better suggestion would be to continue jury selection, but to have a random panel of people who came in for jury duty to be the selectors rather than the lawyers.

34

All torts should contain plenty of cinnamon.
What?

35

[QUOTE=Sage Rat]

  1. Lawyers shouldn’t be able to syphon down the number of jurists to a smaller, less impressive bunch. (I.e. you’re stuck with the ones assigned to you)
    [/QUOTE]

Methinks you mean jurors. Jurists are judges.

36

[QUOTE=Nametag]
Methinks you mean jurors. Jurists are judges.
[/QUOTE]

Oh… :smack:

37

[QUOTE=OtakuLoki]
Not only does a large corporation like GM have the deep pockets to afford superlative representation, but if one were to be socked with their representation costs, there’d be no way to get out from under that kind of levy.
[/quote]

How about a loser-pays-lawyer’s-fees system, but capped at a certain amount (indexed for inflation)? That would provide a disincentive to frivolous lawsuits, without making it so that anyone who sued GM and lost would never get out from under the costs.

I think doing something (such as a single-payer system of health insurance) about health care costs would help here, too. One of the underlying reasons why people get huge awards in lawsuits is to pay for medical expenses. If individuals didn’t have to pay these enormous medical expenses, those huge awards wouldn’t be necessary.

Actually, I think that’s an example of a case where there should be caps on the tort system. The case in question was a boy who became blind because of medical malpractice. The parent was complaining that his son wasn’t being adequately compensated for his loss of quality of life. I don’t think one should expect to get a huge chunk of money just because someone made your quality of life go down. The kid should be compensated for medical expenses (he was), any required special-education expenses, and possibly for lost future income potential, but you don’t deserve millions of dollars just because your life has gotten worse. I think there should be a cap on pain-and-suffering or lost-quality-of-life type awards.

38

[QUOTE=Anne Neville]
Actually, I think that’s an example of a case where there should be caps on the tort system. The case in question was a boy who became blind because of medical malpractice. The parent was complaining that his son wasn’t being adequately compensated for his loss of quality of life. I don’t think one should expect to get a huge chunk of money just because someone made your quality of life go down. The kid should be compensated for medical expenses (he was), any required special-education expenses, and possibly for lost future income potential, but you don’t deserve millions of dollars just because your life has gotten worse. I think there should be a cap on pain-and-suffering or lost-quality-of-life type awards.
[/QUOTE]

I may well be mistaken here, but doesn’t lost income potential come into consideration as a pain & suffering issue when a jury sets down an award? That’s the impression I’d always had, and if that’s the case, $250,000 compensation for a child that may now never be employed because of the effects of the malpractice does seem awfully light to compensate for a career.

I know that there are many places where blind, or vision impared persons can do good, important and renumerative work. But it is still my impression that for all the good that the ADA has done many employers will be reluctant, at the very least, to consider hiring someone with such an obvious disability.

39

[QUOTE=OtakuLoki]
I may well be mistaken here, but doesn’t lost income potential come into consideration as a pain & suffering issue when a jury sets down an award? That’s the impression I’d always had
[/quote]

I was assuming it didn’t (I could certainly be wrong here). If it does, I think the solution would be indexing those caps to inflation, though, not getting rid of them altogether.

40

:confused: Whyever not?

Oops, we’re very sorry that we negligently caused you to lose your arm in a thresher accident. Here, we’ve paid for the medical bills. Now you’re good as new!

Compensatory damages are designed to make an injured party whole to the extent possible; I see absolutely nothing wrong with attempting to assign a dollar value to the fact that you’ve just been deprived of an extremely significant part of your life forever and ever and ever.