From: fsars@acad3.alaska.edu (Allen R Sparks)
Newsgroups: misc.legal
Subject: Re: Tort Reform (was: Number of Lawyers)
Date: 31 Aug 92 08:27:24 GMT
Organization: University of Alaska Fairbanks

In article <1992Aug30.154230.22809@athena.mit.edu>, wdstarr@athena.mit.edu (William December Starr) writes:
> No hostility intended, Allen, but I'll lay before you roughly the same
> challenge that the ABA gave Dan Quayle (and to which he has yet to
> respond): if you think that the tort system should be reformed, what
> do you think the new, reformed system should look like?
> 
> -- William December Starr <wdstarr@athena.mit.edu>

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.

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.

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.

Maybe I'm in gaga land in making these proposals.  For example, I'm
saying that politicians need to make some hard decisions.  Politicians
avoid tough decisions like the plague.  There are always higher
priorities for governors to spend their political capital on. 
Whether you're foreman on a factory shop floor, or a Judge in a
courtroom interpreting the law, consistency and fairness is important
to make rules or laws work.  That's what our system of torts is
missing.  The Congress recognized this problem in our criminal system,
and this is why they passed the sentencing guidelines for federal
judges to follow.  It's time for Congress to turn its attention to the
civil arena.  
                    === Al Sparks
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