From: bobk@dogear.spk.wa.us (Bob Kirkpatrick)
Newsgroups: misc.legal
Subject: Re: Tort Reform (was: Number of Lawyers)
Date: 31 Aug 92 16:09:04 GMT
Organization: Dog Ear'd Systems of Spokane, WA

fsars@acad3.alaska.edu (Allen R Sparks) writes:

> I don't have a comprehensive solution, to the problem, nor am I an
> expert on tort law, or for that matter any kind of law.  But a few
> things strike me as unfair.
> 
> 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.

Speaking from a lay point of view, I have to ask this:

In the case where someone has been harmed, why should they have to
bear costs of bringing their case to court? Sure, I know that some
(even many) of the tort cases out there stretch imagination (like
suing because someone got a shock from using their hairdryer in a
running shower or something). However, some cases, be they product
liability or takings or whatever entail a perpetrator and a victim,
and clearly so. Do we have to accept these situations as those who
fall through the cracks, and have them victimized once by an entity,
and then again by a system that says they should have to pay in
order to gain their due?

> 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.

How could this be done? There is the very real circumstance that one
person's arm, leg, or other appendage is more valuable than another
persons is. It sounds a little discriminatory, but it's true that,
for example, a pro ballplayers loss of a leg is going to cost them
more than, say, a cashier at the local 7-11 convenience store.

> 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.  It hasn't helped the
> legal profession either.  Lawyers are known as "ambulance chasers". 
> The term has been around for a long time, but I think that its use has
> become more common in recent years.  I'm not sure that it would be the
> right decision for us, but we need to take a closer 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.

I have to agree with this to an extent --that extent being that perhaps
an attorney should never be able to collect more than they would on a
straight hourly basis --as in a non-contingency case. That may cause
attorney's to reduce the number of risk cases they take, but maybe not.
I'm not sure of this. But I do know that the arrangements between a
service provider and it's client should, for the most part, be their
affair.

There are some significant problems out there. But I'm rather sensitive
to sweeping and generalized law reform. We've too many examples of the
Congress "fixing" things, and found that all that happened was a making
worse of an area --ableit in different ways than it was previously.


--- 
Bob Kirkpatrick <bobk@dogear.spk.wa.us>
Dog Ear'd Systems of Spokane, WA 
Newsgroups: misc.legal,alt.politics.correct,alt.censorship