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

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.

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.

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.

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.

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

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.

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

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.

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.

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.

We already have most of those provisions in Florida law.

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.

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.

All torts should contain plenty of cinnamon.

Methinks you mean jurors. Jurists are judges.

Oh… :smack:

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.

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.

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.

: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.