From: edwardk@cup.portal.com (edward chungfan kwok)
Newsgroups: misc.legal
Subject: Re: Tort Reform (was: Number of Lawyers)
Date: Mon, 31 Aug 92 10:34:21 PDT
Organization: The Portal System (TM)
  <1992Aug25.230134.1@acad3.alaska.edu>
  <1992Aug30.154230.22809@athena.mit.edu>
  <1992Aug31.002724.1@acad3.alaska.edu>

>A few things strike me as unfair.

Just want to provide some opposing views.  
>
>1. Until about 3 years ago, Alaska allowed anyone found guilty in a
>civil suit to be liable for all the damages, regardless of how much
>responsibility the jury assigned to that individual or corporate
>entity.  That made it easier to extract money from the deep pocket
>they had sued.  Those states that still allow this practice should
>stop it.  Alaskans could not get the legislature to change this law
>because of all the special interests out there against it.  Like most
>legislatures there are a lot of lawyers running around either as
>members, or working for the members.  So the practice had to be
>stopped using the referendum process.

What special interests are opposed to joint and severable liability?  The
"shallow pocket" caucus?  The basis of tort law is really not to punish but
to compensate for the loss suffered by one who is wronged. So would you have a
guy who loses a limb, and thereby loses his ability to make a living and
to support his wife and kids, because some guy driving the truck which 
ran over him was stoned, had in numerous occasion been found stoned, to look
to the driver as the primary source of compensation? The jury may find
that the company, which supervises 2,000 truck drivers nationwide cannot
possibly eradicate the bad apple amongst them, so that neither the company nor
their insurance carrier should be any more than 10% responsible. Is that fair
from the victim's point of view?  That used to be the law.

>
>2. Hard decisions by our policy makers (the legislatures of the fifty
>states as well as Congress) have to be made as to how much a human
>life costs, or an arm, or a leg, etc.  Jurors are being asked to make
>these decisions on a case by case basis when they decide damages.  The
>instructions the Judge gives a jury is not enough to guide them
>through this difficult process.  The result is wildly inconsistent
>jury awards from trial to trial, in the same jurisdiction.  If we are
>going to have a fair judicial system, it has to be consistent.  To aid
>in consistency, punitive damages should be decided by the Judge, not
>the jury, just as it is, with very few exceptions, in criminal cases. 
>The legislatures should be giving more guidance as to how those are
>awarded also.
>

There's only one slight problem.  Look at medicaid.  Do you still think
that Congress is the best place to decide how much a certain medical
treatment should cost?  I think the average juror is a better judge of
damages since the special condition in each case is taken into consideration.
A guy who has diabetes which may complicate medical treatment will be given
consideration by the juror and possibly not so on the form CAL-1047-3.

>3. Contingency fees seemed like a good idea to me when they first
>became popular.  It made access to the legal system more affordable. 
>But one of the results has been an over-reliance on the system. 
>There are people that sue at the drop of a hat.  

Try talk to a personal injury practitioner, tell him you want to sue, and 
that you want him to take the case on a contingency fee basis.  You'll 
be surprised how quickly he'll interrogate you about the minutest detail of
your grievance and tell you what he thinks about the merits and refer
you to some one else.  Why? 'cause in the contingency fee basis, his wallet
is ON THE LINE.  Would you file a suit if you have no hope of getting paid, 
while you pay your support staff, office overhead etc.?
Nuisance suits don't work, since insurance companies have generally made it
a policy to contest these suits.

> Look at Britain's fee system, where the loser pays the legal costs.  
>It's an imperfect system, but so is ours.  I'd like to see a state 
> experiment with it. 

Well, you don't need a state to experiment with it.  Britain is as
good an example as any.  The latest proposal for tort reform over there
is of course a suggestion that the litigants pay their own legal costs.  
That should be a fine starting point for investigation.
Newsgroups: misc.legal