From: mss2@ellis.uchicago.edu (Michael S. Schiffer)
Subject: Re: Liability
Reply-To: mss2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Tue, 10 Nov 1992 22:34:37 GMT

In article <1992Nov10.214437.19343@midway.uchicago.edu> eeb1@midway.uchicago.edu writes:
>In article <1992Nov9.043636.13577@midway.uchicago.edu>
>mss2@midway.uchicago.edu writes:

>>more limited resources.  (I have the same mixed emotions about
>>contingency fees-- they make me very uncomfortable, but I don't have
>a >good counter to the argument that they make it possible for people
>who >otherwise couldn't get legal representation to get a lawyer.)"

>Only if they have lucrative case, however....

	"Not necessarily-- or at least lucrative is a matter of
opinion.  Certainly they aren't all million-dollar suits."

>I do have a suggestion wrt contingency fees.  Keep the contingency
>part of it, but mandate that lawyers be paid by the hour instead of
>1/3 of the winnings.  (You can even make the contingency such that
>they collect up to 1/3 of the winnings or some such so that the
>plaintiffs don't have to pay a fortune for a token award.)  This
>should still let poor people continue to have that access to a lawyer,
>but reduces the lawyer's incentive to press his client to sue for
>punative damages and emotional distress when all his client really
>wants is his medical bills paid for.

	"The problem is that taking a contingency fee _is_ a gamble
for the lawyer involved.  So for there to be an incentive to take
contingent cases, the payoff has to be higher than a standard hourly
fee.  Granted, you could make the contingent fee, say five times the
standard hourly fee or some such-- but there's still an incentive to
push for as large an award as possible to ensure that it's large
enough to cover the fee-- especially since for every case won there
will be cases lost, or won with small amounts of damages which don't
cover the time and expenses.

	"In any case, I'm still of the opinion that the problem is not
the plaintiffs' attorneys per se.  The fact is, asking for
unreasonable amounts of money is not in itself harmful.  If I demand
ten thousand dollars from you for no reason, you're not significantly
inconvenienced.  The problem is judges and juries and laws which make
those damages possible to get.  After all, a lawyer working on
contingency isn't going to sue for a million dollars if the chances
are good that he'll get nothing, nor will corporations settle with
frivolous plaintiffs if they're reasonably certain that such cases
will be thrown out.  And, again, I think judges should be freer in
using sanctions against attorneys who make frivolous claims-- if a
lawyer thinks he's actually going to _lose_ money when he takes a
case, he'll think thrice about it."

>Oh, btw: major peeve with the legal system: PUNATIVE DAMAGES BELONG IN
>CRIMINAL COURTS!  If that means the severity gets upped, then so be
>it.  (And awards for punative damages should go to government or
>charity or some supposedly neutral party instead of the plaintiff;
>they're imposed to penalize the company, not to compensate the
>victim.)

	"But the point of having punitive damages go to the plaintiff
is, simply, to create an incentive for people to sue.  Remember, the
reason that punitive damages are allowed is because the government
presumes that people who commit certain acts should be deterred from
them, over and above direct financial compensation.  But to achieve
deterrence, the risk has to be real.  Essentially, the theory is to
create private attorneys-general, private citizens who will assume
some of the burden of enforcing society's laws, rather than creating a
larger government enforcement bureaucracy.  And, to encourage them to
do this, they're allowed to benefit from this.  The problem here would
seem to be the standards for punitive damages and over-willingness to
award them on a deep-pocket theory, rather than who gets the money--
again, _asking_ for the money isn't the crime, awarding it unjustly
is.  Conversely, if the punishment is appropriate, then it would seem
good public policy to encourage people to help exact it."

Michael
-- 
Michael S. Schiffer, LHN, FCS	"Indeed I tremble for my country
mss2@midway.uchicago.edu	 when I reflect that God is just."
mike.schiffer@um.cc.umich.edu	 -- Thomas Jefferson, Notes on
mss2@amber.uchicago.edu		    Virginia (1784)
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