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

It’s a great point, and at first intuition a fair one. However the only way the tort system will work is to assign a standardized dollar value to compensate a given loss. What makes no sense is that one amputee gets 20 million from the railroad and the next gets 200 thousand from the small business and the next gets nothing at all.

It is actually the capriciousness and uncertainty that are bigger societal issues for dealing with torts than the costs per se of judgments returned.

I’m not a civil lawyer, but I’ve seen a bit of how things get done on the civil side, and know a lot about how crimes are prosecuted. It might be interesting to compare the two.

Criminal lawyers spend a lot of time in courtrooms. Civil lawyers seem to spend very little time in the courtroom, but a lot of time with documents. Interrogatories, depositions, briefs, and other documents fill out the billable hours of big-firm lawyers, but are unknown and unheard of among criminal law attorneys.

Criminal defendants have very little money, and tend to prefer not to spend what they have on lawyers, even when their freedom is at stake. Criminal attorneys tend to charge by the case. Civil litigants are often very rich, and civil law firms charge by the hour. Their clients don’t seem to be all that concerned about costs.

How the Chungs managed to spend $100,000 defending themselves in a suit over a pair of pants, I don’t know. But I imagine they had a lot of lawyers working for them, and that their lawyers’ offices were very nice. (I’m guessing multiple floors in a downtown bank building, with a lot of expensive furniture, and even more expensive art.)

I will say, though, that death-penalty cases in Texas are routinely tried for a fraction of that price. I’m not saying that’s a good thing. I’m just saying that’s how it is.

The costs of litigation are a function of what people are willing to pay. Apparently, the Chungs thought $100,000 was not too much.

But how do you assign a dollar value to something like that? The way it’s done now, it seems to be how well you play to the sympathy of the judge or jury, which is a very bad way to do it IMO. I wouldn’t mind having a system like accidental-death-or-dismemberment insurance does it (assigning a specific dollar value to losing various body parts). But you shouldn’t be able to get millions of dollars because you were able to make the jury feel sorry for you, while someone who suffered the same injuries as you gets much less, because they’re a less sympathetic character. That’s unfair. It’s also unfair that someone who is injured by a richer company should get more in damages than someone injured by a small business, as Chief Pedant pointed out. Losing an arm is losing an arm, whether it’s the fault of your brother-in-law or General Motors.

There might be an issue of the payout for making someone lose an arm would be greater as a percentage of assets for your brother-in-law than it would be for GM. I’d prefer to see stricter laws regarding this sort of thing, and have it handled by the criminal courts and payment of fines.

That’s perfectly fair, but it only speaks to the (not inconsiderable) difficulty inherent in determining the dollar value of intangible future losses in a just and consistent way, not whether such losses should be calculated and compensated in the first place.

The Heinzerling and Ackerman book Priceless, by the way, is a wonderful examination of the subject.

See id.

Here’s a link to that book, too: Priceless

Also, a quick note on punishing people for frivolous lawsuits - there are a couple of basic problems with this idea. The first is that it is - to my understanding - already part of the law in most states.

Another is that punishing somebody who has no money with fines or judgments is pointless. Many (most?) truly frivolous lawsuits are filed pro se (without a lawyer). You can’t get blood out of a turnip, and you can’t make somebody else pay your legal fees, if they don’t have the money to do it.

Finally, you’re imagining that whether a lawsuit is frivolous is somehow self-evident. It’s (usually) not. What it does is inject yet another element of litigation into the lawsuit. In other words, it’s one more thing for the parties to argue about.

Class action reform, in the form of the Class Action Fairness Act of 2005, actually happened because of this very perception. The Act does a number of things, but one of them is to allow judges to reduce excessive attorney fees.

IMHO, CAFA has a number of problems, but chief among them is a fundamental misunderstanding of the role of a class action. Its role is as much victimizer-deterrent as victim compensation. One of the key reasons to sue as a class instead of as an individual is that your individual injury isn’t worth the effort. Maybe some corporation functionally stole $15 from you. You’re not going to sue them over that. And maybe they did it to 300,000 people, reaping an enormous fortune. Well, the civil litigation system wouldn’t be able to keep that corporation in check without a class action. Since lawyers who argue on the plaintiff side of class actions are taking huge risks by investing thousands of hours into a case that might yield nothing, they very reasonably get as much as 1/3 of the results. So you might only get 5 or $10 back out of the $15 you are owed, but that’s more than the $0 you would have gotten otherwise. More importantly, the corporation that fleeced you might think twice next time.

That’s fair enough. I know what Class Actions are supposed to do. But, the sort of lawsuit I was thinking of was such as one within a few years ago when there was a class-action settlement against one of the airlines. As I recall the settlement, none of the members of the class got anything but a voucher good for a discount on future air fare. Which seems a bit problematical to me. In effect, the impression I got was that for the members of the class to actually recieve their compensation they had to buy more services from the company that screwed them. Which seemed more than a little odd as a means of punishing a company.

The lawyers, of course, got cash. Without any strings attached. I don’t mean to say that this settlement was completely bollixed, either. If the choice was some kind of voucher, or destroying the airline completely, I can see why the judge might have chosen to go with the voucher. But it still has a certain odor to it on first blush.

I don’t have the cite for this, now, and I’m not about to try digging up the settlement, now - I want some supper. If you insist I can try looking it up later.

I will also mention that there’s been a great deal of documented abuse of class actions and personal injury suits on behalf of workers exposed to asbestos, sandblasting, and I expect similar lawsuits to begin starting for fiberglass as well.

No cite necessary. One of the things CAFA did was tie attorney fees to the value of coupons in coupon settlements. Unfortunately, CAFA will probably result in more of the type of settlements you decry. While CAFA gives judges more power to stop settlements that don’t favor plaintiffs, it simultaneously sticks all major class actions into federal court (which is less pro-plaintiff than many state courts, and was indeed part of the impetus behind CAFA). It wouldn’t surprise me to see more settlements that pay the lawyers, screw the plaintiffs, and suit the defendants just fine.

Ultimately it is a question of balancing the goal of keeping attorneys in line while not deterring all the good that comes from class actions. It’s a legitimately tough balance to achieve, but I certainly don’t think we need to go further than we already have to the side of keeping attorney’s in line.