albionmoonlight
07-05-2004, 01:32 PM
Every so often there is a post to this board talking about a personal injury lawsuit or a personal injury threatened verdict, or a story along the lines of “my brother’s roommate’s cousin’s co-worker’s sister slipped on a banana peel that she threw down herself and sued the Foodway for $10,000,000 and won; lawyer’s (sic) suck!” Partly out of natural defensiveness about my profession, and partly to play Devil’s advocate, I find myself generally siding with the attorneys/injured parties/legal system as a whole in these debates. In reality, though, my position is much more moderate. I thought that I would take this opportunity to revive one of Quik’s many fine traditions (the WhatDoYouKnow) and explain the problem of personal injury lawsuits in a somewhat objective matter. Very few people in the legal community contend that the system as it stands now works as well as we would like. However, as I hope to demonstrate, there are going to be problems with any system that might be able to replace it.
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As an initial matter, I would like to indicate things that I am not going to analyze. First, except when necessary, I am not going to be discussing criminal liability. If you blow up SkyDog’s car, in addition to possibly owing SkyDog some money, you may also have to have a not-so-friendly chat with your local FBI agent about why you should not be playing with car bombs. How and why we as a society have decided to punish and control certain “bad” behavior is a fascinating topic—indeed, I am pretty sure that I want to dedicate the better part of my professional life to studying it. It is, however, far beyond the scope of what I am doing here. (Of course, the line between criminal and non-criminal law is getting blurred every day. To name just two examples, states have the power to involuntarily commit people in non-criminal proceedings. In addition, it is now mandated (pursuant to the Mandatory Victims Restitution Act) that criminals convicted of a broad range of federal crimes (if I recall, crimes against property and crimes of violence) have to, in addition to being punished by society, pay restitution to their victims upon sentencing.) Additionally, I will not be discussing things like employment discrimination and its ilk, which have been outlawed by federal statutes. Those topics, while certainly involving the courts trying to protect “injured” people are not really what lawyers mean when we discuss personal injury and tort. Additionally, my discussion of those statutes would not be nearly so objective. It would be more like “Why Title VII is a failed policy and needs to be completely replaced—root and branch.”
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I. What is a tort and the three general types of tort liability
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Tort--A tort is from French for "wrong." It is generally defined as a civil (as opposed to criminal) wrong or wrongful act, whether intentional or accidental, from which injury occurs to another.
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There are three general types of tort liability, the comprehension of which becomes very important when attempting to understand the whole system.
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1.) Intentional torts—If I intentionally hurt you or damage your property (punch you in the face, steal your car, set your horse on fire, etc.), I am liable to pay you for your damages. We will not spend much time discussing these torts because there is not much to discuss. If <st1:place>Cam</st1:place> blows up Fritz’s $5,000 car, then <st1:place>Cam</st1:place> should pay Fritz $5,000. No one really argues with that.
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2.) Negligence—here is one of the biggies. If I act unreasonably and do not show you the degree of care that an ordinary man would show, and you are injured as a result of my unreasonable behavior, then I am liable to you for your injury. The textbook example of negligent behavior: I am driving along the road staring at my brand new XM radio and I forget to pay attention to traffic. Because I don’t see you stop, I end up rear ending your car and injuring you. I did not intend for you to be hurt, but I was not exercising the degree of care that an ordinary person would and as a direct result, you are injured. I am liable to you for that injury. Note well that you need both a lack of care on my part and causation of your injury. If—despite the fact that I keep my car in tip top shape—my breaks fail and I rear end you, then I am not liable to you for that injury. I did not breach my duty of care. Also, if I am driving like an unreasonable maniac but don’t hit anyone, then I am not liable to anyone for injury. You can’t sue me if you have not been damaged.
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Medical malpractice falls into this category, though it is somewhat specialized. Doctors are held to the standard of care of an ordinary physician in their position. If a doctor does not treat you with the degree of care that an ordinary doctor would and you are injured as a result, then that doctor is liable to you. If, however, the doctor did treat you with the right degree of care, but you are injured anyway (say—a disease that no test could reasonably be expected to detect), then the doctor is not liable to you.
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Also worth noting while we are defining negligence—an employer is held liable for the acts of its employees. So when Joe Blow has a sixpack before driving the UPS truck and ends up negligently causing a traffic accident, the victims do not sue Joe. They sue Big Brown. In that instance, the victim need to prove both that Joe was negligent and that he was working for UPS. (It’s outside of the scope of our discussion, but these cases become more interesting when Joe is somewhere between working and not working for UPS—such as on a personal errand in the company truck on his way to work). People always choose to sue the employer rather than the employee for deep pocket reasons. Note well that (in the above example), while Joe need to be at fault for causing the injury, UPS as a corporation does not need to be at fault in any way for hiring Joe. Vicarious liability for your employees is just one of the costs of doing business. <o:p></o:p>
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3.) Products Liability—here is the other biggie. If you put a product on the marketplace and it malfunctions and injures someone, then you are liable to them for that injury EVEN IF YOU DID NOTHING WRONG. Please note this important distinction from negligence. If John Deere sells you a lawn mower and a blade flies off and takes out your eye, they owe you money regardless of fault.
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The theory of liability for products liability is completely different than the theory for negligence. In negligence, we say that everybody owes everybody else the duty to act like a reasonable person. If I act unreasonably and injure you, we have decided that I should compensate you for that injury because the injury is—on some level—my fault. With products liability, however, we have decided that the consumers who use a product should be the ones to pay for its costs. It’s a conceptualization based, in part, on economic theory. Because stuff happens, we know that a certain number of lawn mowers will blow up and injure people—no matter how careful John Deere is. Even if .01% of the products rolling off a line are defective, that’s still 100 defective products per million sold. When those inevitable defective products cause the inevitable injury, who should be stuck with the bill? We say that the manufacturer should be stuck with the bill because then it will raise the cost of the product to compensate for that expense (incurred either directly or through its insurance premiums). The true cost, therefore, of stuff happening is borne by all of the people who purchase and use the stuff. At least—that’s the theory behind strict products liability. (Strict liability is another way of saying that fault has nothing to do with liability).
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If you understand that negligence and products liability are two different theories of liability, you are already ahead of the game in terms of the general public understanding of torts.<o:p></o:p>
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II. A quick aside—what really drives the system
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In a word: Insurance. People don’t have the kind of money that it takes to satisfy their liability generally. It is no good, as a practical matter, to have a judgment against someone if there is no money to satisfy that judgment. Most tort suits begin and end, as a practical matter, with a settlement driven, for the most part, by the limits of the liability insurance policy.
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III. This system compared to other systems
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A. What’s so wrong about sticking it to Wal-Mart?
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It may occur to you to ask—what is so wrong about the system right now. Joe Blow gets injured and either Wal-Mart or State Farm or some such faceless entity with billions of dollars picks up the tab. Even if maybe Joe does not deserve the money under the system outlined above, he’s still a guy with a broken leg and two kids to support and maybe it’s better that he have the money instead of GEICO.
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The problem with that logic is that insurance companies and large retailers did not obtain their billions of dollars by giving away money. The more claims that people make against the Wal-Marts and the State Farms of the world, the more that they will raise their rates and/or prices. Because almost everyone pays for insurance and/or purchases products, almost everyone pays for Joe Blow’s broken leg.
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B. A non fault based system?
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There is no reason that we need to have a fault-based system of negligence at all. We could have a system wherein everyone pays for his own losses, regardless of fault. If cthomer decides to negligently store his antique anvil collection on his seventh story windowsill, and one of them happens to fall and hit WSUCougar on the head as he is walking his shar-pei, we could have a system wherein WSU pays for his own injuries and has no claim at all against cthomer.
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There are a couple of potential problems with that system. First, from an economic perspective, we would not be placing the burden on the proper party. Our current system encourages the prevention of accidents/injuries by placing the burden of preventing those injuries on the parties in a position to prevent them. Using the above example, cthomer would have no reason to use any care when storing his anvil collection if he was not liable for the damage that he caused. Indeed, no one would have any incentive to modify their behavior in a way that would prevent accidents or injuries. We would still have the criminal law to deter particularly egregious behavior, but that may not lead to a reduction in simple negligent injuries. (OR, for those who like these kind of “what –if” games—it may lead to an expansion of the criminal law. Someone whose name I forget has postulated that the criminal law developed in the areas where tort law was not sufficient to control behavior. Using that logic, a world in which cthomer is not made to suffer private economic damages because of his negligent anvil storage may actually see him subject to criminal liability for “negligent endangerment” or some other such “crime” that evolves as society tries to curb accident causing behavior.)
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Also, there is no reason to think that such a system would cut down appreciable on litigation. It would just shift its focus. In a no-fault world, most people would have “personal injury” insurance to make sure that their lives were not destroyed by cthomer and his unhappy anvils. Of course, when people would be injured, they would make a claim on their insurance which would challenge the claim—leading to litigation, not between WSUCougar and cthomer, but between WSUCougar and his insurance company.
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So, in short, a no fault world would probably increase accidents without decreasing litigation.
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C. Oooh, I know. Set up a public fund.
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I’ll throw out this suggestion to give Fritz, Bucc, Jon, etc. heart attacks. Set up a public fund to pay for injured people’s injuries. After all, shit happens, and there is nothing we can do about it. It’s a problem with which society has to deal—so let society deal with it through the government.
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This idea has several flaws in it from my perspective. First, we run into the same problem of shifting the burdens into which we run in the no fault world. Why should I care if I hurt you if Uncle Sam is going to pick up the tab? Also, why should my taxes go up if you are too much of a dumbass to fill up the hole in your front yard and your neighbor is too much of a dumbass not to fall into it and break his ankle? And, of course, whatever the government does tends to come with costs inherent to the bureaucracy. I am not in favor of a government as small as some on this board, but I certainly agree that it should not be expanded into this area.
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All in all, though some have suggested wholesale changes to the way in which personal injury lawsuits are done—there are problems with any alternative. The better approach may be to try to fix aspects of the current system to try to improve what problems do exist.<o:p></o:p>
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IV Problems with our system and solutions within the system
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The main problem with the system as perceived by the public—and expressed colloquially—“people bring frivolous lawsuits and end up receiving huge jury verdicts which are out of proportion both to the injury that they received and to the fault of the company paying out the judgment. Both the frequency of lawsuits and the enormous verdicts possible in these lawsuits make it hard for companies to do business and almost certainly dampen economic progress. And its just NOT FAIR.”
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As I have been writing the above paragraphs, I have been jotting down notes to myself of what all of these little changes could be. I had hoped to present them in an organized fashion, but I think that such an attempt would require more revision than I am willing and able to do at this point. Instead, I will simply discuss various ideas as they have occurred to me and leave it to y’all to devise creative solutions that play them off each other and incorporate them into a more holistic reform approach. Or you can just ignore me. Either way is cool.
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A. The Jury
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It is widely suspected that one of the main things driving the size of verdicts in recent times is the jury. Even the non-cynics among us can appreciate that when an important decision is left in the hands of 12 people who were not able to get out of jury duty, weird things can happen. There are two “problems” with the jury system. First, juries are random. You can screen them, you can try your case in front of mock ones, you can try to get a sense of them. But, ultimately, they can do some pretty weird stuff when they get back into the jury room. That randomness scares large companies who are the ones with millions on the line in lawsuits of this type. No matter how good their case is, if it gets to the jury, they may lose. Plaintiffs attorneys can use that threat of randomness as a sword to bully defendants into paying settlements that they would not otherwise be willing to pay. This increased likelihood of achieving settlement makes it more likely that suits will be brought. If cases were tried soley by judges, there would be a lot more predictability in the system, and people may be less likely to bring weak lawsuits in the hopes of scaring a settlement from a defendant.
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Juries also tend to have sympathies that affect their decisions. They may see the plaintiff sitting in that chair and picture themselves injured. They may also think that it is pretty cool that “one of their own” is now in a position to “win the lottery” and award an enormous verdict because that is what they would want to receive. Also, there is the basic human instinct of feeling more important as a juror if you award $500,000,000 instead of $5,000,000. In other words, juries may be inclined to “side” with the plaintiff when deciding on a damage award. When you combine that with their randomness, you can see why some people say that they are the beginning and the end of the problem.
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So let’s get rid of them, right? Well, even if we wanted to, we can’t. The Seventh Amendment preserves the right of a jury trial in actions of this sort. Nothing short of a constitutional amendment will get rid of juries in civil cases. They are here to stay. And that’s not necessarily a bad thing.
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If you look at the Bill of Rights (and if you have not lately—WHY NOT? Lots of men have died to preserve those freedoms. Don’t dishonor their memory by taking it for granted.) you notice that most of the provisions apply to keeping the government out of our business. Sitting there, somewhat incongruously among the right to worship as you please and the right to be secure from unreasonable search and seizure by the government, is a whole amendment dedicated to the idea that you have a right to have 12 honest men sit in review of your disputes with private parties. (quick aside, you may also note that jury trials are preserved “only” when the amount in controversy is $20 or more. As wise as the founding fathers were, they did not think to tie the Constitution to inflation). Why was this such an important issue? In short, the founding fathers did not want a repeat of what happened at times in <st1:country-region><st1:place>England</st1:place></st1:country-region>. Judges tended to be (and still tend to be) from the upper classes. As such, they would identify better with upper class people and the upper class lifestyle. Also, in the much smaller world in which they lived, the judges would know almost every other person in his economic circle. The early Americans feared that when a poor man was in a lawsuit against a rich man, the poor man would not get a fair shake if his fate was left in the hands of the rich man judge. By preserving the right to a jury trial, the founding fathers hoped to protect themselves from the tyranny of unfair judges who took a dim view of the “common man.” In their own words (I am taking these quotes from the recent case of Blakley v. <st1:State><st1:place>Washington</st1:place></st1:State>): John Adams notes that “[T]he common people, should have as complete a control . . . in every judgment of a court of judicature” as in the legislature, while Thomas Jefferson stated that “Were I called upon to decide whether the people had best be omitted in the
Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.”
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This mindset is not entirely out of place today. In a world in which lawsuits were in the almost complete control of trial judges, how important do you think those judges become? It all of a sudden becomes job 1 of the StateFarms of the world to make sure that their guys are on the bench. I think that we would see a lot more money thrown at judicial elections and/or appointment processes by large corporations and that the result of those elections may swing the pendulum too far the other way (i.e. people who really deserve money for their injuries not getting any). While I understand the problems with juries and realize that something should be done—I personally agree with the founding fathers that 12 honest men may be the best way to make sure that the system stays fair.
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Finally, for reasons too complex to discuss here, the Seventh Amendment “preserves” the right to a jury trial. The short of that means that if the government creates a system (i.e. worker’s comp.) that did not exist at the time of the Seventh Amendment, it does not need to provide a jury to adjudicate your rights in that system. Accordingly, you have certain quasi-public administrative agencies (worker’s comp is the biggest and most well known example) that have taken the place of traditional personal injury remedies. The driving force behind these administrative remedies is, in part, to circumvent the jury process.<o:p></o:p>
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B. Forum shopping/diversity
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A topic closely related to juries in the idea of forum shopping. Here is where I advocate for lots of reforms. State courts are divided into districts which tend to follow county lines or some other similar sized division. Plaintiffs lawyers know where to bring their suits. There are places in the country where you are much, much, much more likely to get a “sympathetic” jury than you would be elsewhere. When a plaintiffs lawyer wants to bring a suit against a corporation, she will do everything in her power to bring that suit in those particular districts. This practice distorts the jury’s role as the consciousness of the community and instead uses the jury to try to force a settlement or a large verdict from defendants. It would be like taking a “random” survey of people on this board and asking them if they enjoyed sports and computer games. There are systems in place to try to prevent this kind of “forum shopping” by plaintiffs, but I think that they should be a lot stronger. A couple of potential solutions—make the jury pools larger geographically (of course, then you have the problem of making jurors drive a long way to hear cases) or have the cases assigned “randomly” within the state court system (of course, if you live in Houston, you may not want to be forced to litigate your claims in El Paso). Something, in my opinion, must be done.
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Along these lines, here is another history lesson. There are two ways that a suit can be brought in Federal (as opposed to state) court. First, it can involve a federal law (not the case here as almost all laws of this type are state laws). Second, if the parties are citizens of different states (there are rules to determine the state of which a corporation is a “citizen”), then the case can be brought in federal court. Historically, this “diversity” law was passed because the founding fathers thought that a <st1:State><st1:place>Pennsylvania</st1:place></st1:State> guy being sued by a <st1:country-region><st1:place>Georgia</st1:place></st1:country-region> guy in <st1:country-region><st1:place>Georgia</st1:place></st1:country-region> state court may not get a fair shake and should have access to the more neutral federal forum (you have to remember that we were just a few years out of a confederation at this time). While concerns about regional prejudice have abated, diversity jurisdiction still serves an important purpose. Federal juries are drawn from larger pools than state juries. Accordingly, if a plaintiff sues you in one of these plaintiff friendly counties in state court, you—as the defendant—will want to move the case to federal court so as to get a more equitable jury.
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While diversity jurisdiction does dull the effects of forum shopping, I still find it to be a very inefficient way of solving the problem. First, federal courts are not the most efficient forum for interpreting state laws (for what I hope are obvious reasons). Second, parties know how important the forum is and will spend (read: waste) lots of time and money trying to keep certain parties in or out of a lawsuit in order to achieve (or defeat) diversity. I would prefer to get rid of diversity jurisdiction and implement reforms on the state level to prevent forum shopping.
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C. The rules of evidence
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The evidence that can and cannot be presented at trial is controlled by the federal or state rules of evidence (most state rules of evidence mirror the federal rules to a large extent). Though these rules are complicated enough to warrant their own class in law school, you can get by here with the general understanding that evidence should not be admitted if it is 1.) irrelevant to the case or 2.) likely to unfairly prejudice the jury. As should be obvious, a lot of a case can depend on what evidence is and is not admitted to the jury. Here are a couple of specific rules that tend to affect cases of this nature.
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First, parties are specifically barred from mentioning that the defendants have liability insurance to cover the injury. In other words, if you slip and fall on <st1:place>Cam</st1:place>’s lawn, and <st1:place>Cam</st1:place>’s damages will be paid by Allstate—your lawyer cannot mention to the jury that Allstate is picking up the tab instead of <st1:place>Cam</st1:place>. If the jury knows that Allstate’s deep pockets are picking up the tab, it will be less likely to make a fair decision in <st1:place>Cam</st1:place>’s favor and may be likely to find for you because “no one is really getting hurt.” This, by and large, is a good idea.
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Second, it is generally considered irrelevant (and therefore inadmissible) if the plaintiff has filed lawsuits in the past. The thinking here is that we don’t want a jury to look at past acts when deciding the merits of this case. Just because you happened to break your leg last year and sued someone does not mean that you did NOT do it this year, too. We don’t want a jury ruling against someone because it perceives him as “litigious.” This rule allows people to sue companies over and over based—in large part—on fake injuries. Because the jury does not know that they have had 10 slip and fall cases (leading to settlements) in the past, they don’t know that they are (probably) faking this suit. I would reform this rule to allow evidence of past lawsuits in certain extreme cases.
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D. Contingency Fees
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Lawyer’s who represent injured plaintiffs get paid by taking a percentage of the recovery that the plaintiff receives (Lawyers who defend the large corporations get paid hourly). This system is supposed to encourage the lawyers to only take/pursue meritorious claims and to advocate zealously for their clients because the lawyer’s remuneration is tied directly to the success of their client’s lawsuit. This system, however, works on the assumption that all the client cares about is money. Any other thing from which the client could benefit—and humans have varied and complex psychological needs—is not on their attorney’s radar.
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In addition, this system encourages lawyers to try to maximize payment/hours spent on a case. If an attorney can get you $500,000 in a quick settlement or $1,000,000 by investing 100 hours in the case, it is to his benefit to get you the money quickly so he can spend those 100 hours getting more quick settlements. In this way, the contingency system leads to a subset of plaintiffs lawyers who are in the game only for quick settlements.
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In addition because plaintiffs do not pay legal fees, defendants are much more likely to be forced into settlements by the threat of bearing large legal costs. Even if a defendant successfully “wins” a lawsuit, the money spent defending it is still a loss for defendants. In this way, there is an incentive for defendants to settle cases—even cases that they are likely to win. Of course, this means that plaintiffs are more likely to bring cases that should not be brought because they are not as likely to win.
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E. Rule 11 sanctions
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There is a procedure to sanction lawyers who act in an unprofessional manner. These are called Rule 11 Sanctions—after the Rule of Civil Procedure which authorizes a court to issue them. One solution to frivolous lawsuits would be to increase the prevalence of these sanctions given to plaintiffs lawyers who bring frivolous suits. Two things work against this potential reform.
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First, it will be difficult to strike a balance between cooling off frivolous suits and scaring lawyers from taking cases. If sanctions become too prevalent, then people who are actually injured may not be able to get representation. In addition, insurance companies may begin to focus on—not actual defense on the merits of a case—but getting a reputation as a defendant who always seeks sanctions against plaintiffs. In this manner, you will have a lot of additional litigation based on whether or not sanctions are warranted in a particular case. Any reform that increases litigation related to collateral issues will end up causing a general economic drain on the system.
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Second, the legal community is a small community. As a practical matter, it will be hard to get judges to issue sanctions against lawyers with whom they went to law school and who they see in court every week. In addition, lawyers, like doctors, like to believe that we are never wrong. A judge issuing a sanction against a lawyer has to admit, on some level, that a lawyer screwed up. That’s harder for a judge to admit than it would be for one of you to admit. Finally, if lots of lawyers are getting sanctioned, then the profession as a whole looks worse in the public eye.
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F. Get rid of vicarious employer/employee liability
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We could also get rid of the rule that an employer is vicariously liable for the torts of its employee. When Bob the UPS driver hits you, you can still sue Bob, but can’t sue UPS. This rule may cut down on litigation against deep pockets. Some (frivolous) lawsuits that are worth bringing against UPS may not be worth bringing against Bob. Therefore, without vicarious liability, there may be less litigation.
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However, I think that there is a lot of good to vicarious liability. Companies—who have the most control over the acts of the employees—are encouraged to be ubersafe. They are encouraged to be more than non-negligent. They are encouraged to prevent accidents if at all possible. In addition, UPS makes a lot of money specifically because Bob is in that truck. It seems fair on some level that UPS should pay for when stuff happens. The framework becomes sort of like the theory behind products liability.<o:p></o:p>
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G. More than $10,000
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Some reforms are simple. In <st1:State><st1:place>North Carolina</st1:place></st1:State> when you sue someone for over $10,000, you now state in the complaint only that that your damages are “over $10,000.” By making this simple change, doctors (and other defendants) have their reputation protected by not having “Dr. No sued for $25,000,000” plastered on the front page of the paper. By removing this arrow from the quiver of plaintiffs, <st1:State><st1:place>North Carolina</st1:place></st1:State> prevents extra-legal concerns from affecting the process to some small extent.
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H. Populist judges
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On the state level, lots of judges are elected. Some judges make sure that they keep getting elected by appealing to the populist sentiments of the community. These judges do whatever they can to make sure that defendants who end up in their court pay huge money judgments to plaintiffs in the community. In this manner, election is reassured. There are also judges who win elections by running ads funded by deep pocketed defendants. They do their best to make sure that defendants who end up in their court do not pay large money judgments. In this manner, election is reassured. There are, to keep it short, problems with elected judges.
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I. Emotional distress and Pain & Suffering
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Those of you who have managed to read this far have probably been waiting for this one. What the hell is emotional distress? Why do people get to receive damages for such nebulous concepts? Ohhh. I’m sad that you hit me with your car; give me money?
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One thing that people may not realize is that it is actually quite hard to receive damages for emotional distress. The courts have recognized for a long time that these damages are easy to fake, and have established systems to try to ensure (to the extent possible) that only valid claims for emotional distress are heard.
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One has to remember that—even though they seem weak and nebulous—these are real damages that people do sometimes suffer. Even though pain and suffering and emotional distress are hard to quantify, they do exist. In most states, you need to have some physical injury occur to be able to recover for emotional distress. The theory there is that the few valid cases of emotional distress that fall through the cracks are worth a system that manages to weed a lot of the invalid cases out.
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Pain and suffering is not even an independent claim on its own. It is simply damages for which one is able to recover once someone is found liable to someone else for a substantive tort.
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That said—it would be helpful—IMHO—to instruct juries on the ball park of what kind of damages tend to be given for certain cases. We hesitate to give any “advice” to the jury that would tend to overly sway its opinion. However, to me, there is nothing wrong with assuming that 12 random people really don’t know how much a lifetime of migraine headaches are worth. I would do more to allow juries to see what we consider to be “reasonable” amounts for various types of damages.
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J. Straight Damage Caps
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Some states have tried to take the simple approach and simply have an absolute cap for damages. No jury award can be for more than $X. Bad idea. These do not stop plaintiff’s lawyers from bring small frivolous claims and getting settlements. These do, however, stop the few people who legitimately suffer massive injuries from actually getting full compensation. Also, they allow corporations to simply budget for injuring people—meaning that they will be able to decide how many people to injure (on average) by a certain activity. If the activity is more profitable than the damages that will be paid out—there is no economic reason not to engage in the activity. Indeed, to value the lives and happiness of others over profits breaches the fiduciary duty to the shareholders.
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K. Punitive Damages
<o:p> </o:p>
If you can prove that the damage against you was caused by behavior that was part of a larger plan by the defendant, you can generally hit them with punitives (for example—if your breaks went out because of Ford’s policy to make cheap breaks on the theory that they might not get caught). These damages exist for several reasons. First, they encourage people to bring suits that they may not otherwise bring (because the damage to any one person is too low to incentivise a suit) with the hope of recovering more damages. Second, they work on the theory that not everyone injured is going to bring suit. These damages, then, reflect those not-brought suits and better represent the true cost of the behavior. Third, they are quasi-criminal in that they “punish” the defendant for behavior more blameworthy than negligence.
<o:p> </o:p>
Some people do not like punitives because they say that they encourage frivolous lawsuits. They also say that they encourage juries to go crazy and award jillion dollar awards. In addition, if Ford was bad to tens of thousands of people, why should I get all of that damages personally just because I am the one who brought suit? Some have advocated getting rid of punitives (bad idea because of all of the good they do as explained above). Some have said that we should keep them, but have the extra damages go into a state fund to be used for the public good (or to help treat the type of injury caused by the defendants). The problem with that system is that the state should not be allowed to benefit from the result of a proceeding controlled (by and large) by the state and its employees. In addition, what is the incentive of the plaintiff to bring the suit if the plaintiff is just going to get his little $ and the big $$$ will go into a fund that he never sees?
<o:p> </o:p>
The Supreme Court recently has struck down large punitive damage awards as a violation of the Due Process clause (the true intellectual conservatives don’t like this because it expands the constitution in a way the framers never intended. The political conservatives love it because it helps big businesses. The issue is a good litmus test for your “conservative” friends). Stay tuned for further developments.
<o:p> </o:p>
L. The Media
<o:p> </o:p>
Do you know how much money people have gotten from fast food restaurants because it made them fat? None. Zero. Zilch. It’s a dumbass claim and has been thrown out of court everytime that it has been brought. The system works and can catch bullshit. You’d never know that to hear the media talk. They love to publicize it everytime a BullShit claim is brought. That’s like making a news story every time someone walks in a doctor’s office and claims to have a strange disease. If I walk into my Dr.s and claim to have Ebola, I doubt that FoxNews will run a headline stating that Ebola is in <st1:country-region><st1:place>America</st1:place></st1:country-region>. However, if I bring a b.s. suit, you can bet that they will post it as if I had already gotten paid (and all the internet guys can get their Stella awards ready).
<o:p> </o:p>
Things are not as bad as they would have you believe. The system works and can catch bullshit. Some bad things slip through the cracks, but let’s just work on changing the bathwater, not on tossing the baby.
<o:p> </o:p>
V. Conclusion
<o:p> </o:p>
Jeeze that was freaking long. Oh, well. Hope it serves some purpose
<o:p> </o:p>
As an initial matter, I would like to indicate things that I am not going to analyze. First, except when necessary, I am not going to be discussing criminal liability. If you blow up SkyDog’s car, in addition to possibly owing SkyDog some money, you may also have to have a not-so-friendly chat with your local FBI agent about why you should not be playing with car bombs. How and why we as a society have decided to punish and control certain “bad” behavior is a fascinating topic—indeed, I am pretty sure that I want to dedicate the better part of my professional life to studying it. It is, however, far beyond the scope of what I am doing here. (Of course, the line between criminal and non-criminal law is getting blurred every day. To name just two examples, states have the power to involuntarily commit people in non-criminal proceedings. In addition, it is now mandated (pursuant to the Mandatory Victims Restitution Act) that criminals convicted of a broad range of federal crimes (if I recall, crimes against property and crimes of violence) have to, in addition to being punished by society, pay restitution to their victims upon sentencing.) Additionally, I will not be discussing things like employment discrimination and its ilk, which have been outlawed by federal statutes. Those topics, while certainly involving the courts trying to protect “injured” people are not really what lawyers mean when we discuss personal injury and tort. Additionally, my discussion of those statutes would not be nearly so objective. It would be more like “Why Title VII is a failed policy and needs to be completely replaced—root and branch.”
<o:p> </o:p>
I. What is a tort and the three general types of tort liability
<o:p> </o:p>
Tort--A tort is from French for "wrong." It is generally defined as a civil (as opposed to criminal) wrong or wrongful act, whether intentional or accidental, from which injury occurs to another.
<o:p> </o:p>
There are three general types of tort liability, the comprehension of which becomes very important when attempting to understand the whole system.
<o:p> </o:p>
1.) Intentional torts—If I intentionally hurt you or damage your property (punch you in the face, steal your car, set your horse on fire, etc.), I am liable to pay you for your damages. We will not spend much time discussing these torts because there is not much to discuss. If <st1:place>Cam</st1:place> blows up Fritz’s $5,000 car, then <st1:place>Cam</st1:place> should pay Fritz $5,000. No one really argues with that.
<o:p> </o:p>
2.) Negligence—here is one of the biggies. If I act unreasonably and do not show you the degree of care that an ordinary man would show, and you are injured as a result of my unreasonable behavior, then I am liable to you for your injury. The textbook example of negligent behavior: I am driving along the road staring at my brand new XM radio and I forget to pay attention to traffic. Because I don’t see you stop, I end up rear ending your car and injuring you. I did not intend for you to be hurt, but I was not exercising the degree of care that an ordinary person would and as a direct result, you are injured. I am liable to you for that injury. Note well that you need both a lack of care on my part and causation of your injury. If—despite the fact that I keep my car in tip top shape—my breaks fail and I rear end you, then I am not liable to you for that injury. I did not breach my duty of care. Also, if I am driving like an unreasonable maniac but don’t hit anyone, then I am not liable to anyone for injury. You can’t sue me if you have not been damaged.
<o:p> </o:p>
Medical malpractice falls into this category, though it is somewhat specialized. Doctors are held to the standard of care of an ordinary physician in their position. If a doctor does not treat you with the degree of care that an ordinary doctor would and you are injured as a result, then that doctor is liable to you. If, however, the doctor did treat you with the right degree of care, but you are injured anyway (say—a disease that no test could reasonably be expected to detect), then the doctor is not liable to you.
<o:p> </o:p>
Also worth noting while we are defining negligence—an employer is held liable for the acts of its employees. So when Joe Blow has a sixpack before driving the UPS truck and ends up negligently causing a traffic accident, the victims do not sue Joe. They sue Big Brown. In that instance, the victim need to prove both that Joe was negligent and that he was working for UPS. (It’s outside of the scope of our discussion, but these cases become more interesting when Joe is somewhere between working and not working for UPS—such as on a personal errand in the company truck on his way to work). People always choose to sue the employer rather than the employee for deep pocket reasons. Note well that (in the above example), while Joe need to be at fault for causing the injury, UPS as a corporation does not need to be at fault in any way for hiring Joe. Vicarious liability for your employees is just one of the costs of doing business. <o:p></o:p>
<o:p> </o:p>
3.) Products Liability—here is the other biggie. If you put a product on the marketplace and it malfunctions and injures someone, then you are liable to them for that injury EVEN IF YOU DID NOTHING WRONG. Please note this important distinction from negligence. If John Deere sells you a lawn mower and a blade flies off and takes out your eye, they owe you money regardless of fault.
<o:p> </o:p>
The theory of liability for products liability is completely different than the theory for negligence. In negligence, we say that everybody owes everybody else the duty to act like a reasonable person. If I act unreasonably and injure you, we have decided that I should compensate you for that injury because the injury is—on some level—my fault. With products liability, however, we have decided that the consumers who use a product should be the ones to pay for its costs. It’s a conceptualization based, in part, on economic theory. Because stuff happens, we know that a certain number of lawn mowers will blow up and injure people—no matter how careful John Deere is. Even if .01% of the products rolling off a line are defective, that’s still 100 defective products per million sold. When those inevitable defective products cause the inevitable injury, who should be stuck with the bill? We say that the manufacturer should be stuck with the bill because then it will raise the cost of the product to compensate for that expense (incurred either directly or through its insurance premiums). The true cost, therefore, of stuff happening is borne by all of the people who purchase and use the stuff. At least—that’s the theory behind strict products liability. (Strict liability is another way of saying that fault has nothing to do with liability).
<o:p> </o:p>
If you understand that negligence and products liability are two different theories of liability, you are already ahead of the game in terms of the general public understanding of torts.<o:p></o:p>
<o:p> </o:p>
<o:p> </o:p>
II. A quick aside—what really drives the system
<o:p> </o:p>
In a word: Insurance. People don’t have the kind of money that it takes to satisfy their liability generally. It is no good, as a practical matter, to have a judgment against someone if there is no money to satisfy that judgment. Most tort suits begin and end, as a practical matter, with a settlement driven, for the most part, by the limits of the liability insurance policy.
<o:p> </o:p>
III. This system compared to other systems
<o:p> </o:p>
A. What’s so wrong about sticking it to Wal-Mart?
<o:p> </o:p>
It may occur to you to ask—what is so wrong about the system right now. Joe Blow gets injured and either Wal-Mart or State Farm or some such faceless entity with billions of dollars picks up the tab. Even if maybe Joe does not deserve the money under the system outlined above, he’s still a guy with a broken leg and two kids to support and maybe it’s better that he have the money instead of GEICO.
<o:p> </o:p>
The problem with that logic is that insurance companies and large retailers did not obtain their billions of dollars by giving away money. The more claims that people make against the Wal-Marts and the State Farms of the world, the more that they will raise their rates and/or prices. Because almost everyone pays for insurance and/or purchases products, almost everyone pays for Joe Blow’s broken leg.
<o:p> </o:p>
B. A non fault based system?
<o:p> </o:p>
<o:p> </o:p>
There is no reason that we need to have a fault-based system of negligence at all. We could have a system wherein everyone pays for his own losses, regardless of fault. If cthomer decides to negligently store his antique anvil collection on his seventh story windowsill, and one of them happens to fall and hit WSUCougar on the head as he is walking his shar-pei, we could have a system wherein WSU pays for his own injuries and has no claim at all against cthomer.
<o:p> </o:p>
There are a couple of potential problems with that system. First, from an economic perspective, we would not be placing the burden on the proper party. Our current system encourages the prevention of accidents/injuries by placing the burden of preventing those injuries on the parties in a position to prevent them. Using the above example, cthomer would have no reason to use any care when storing his anvil collection if he was not liable for the damage that he caused. Indeed, no one would have any incentive to modify their behavior in a way that would prevent accidents or injuries. We would still have the criminal law to deter particularly egregious behavior, but that may not lead to a reduction in simple negligent injuries. (OR, for those who like these kind of “what –if” games—it may lead to an expansion of the criminal law. Someone whose name I forget has postulated that the criminal law developed in the areas where tort law was not sufficient to control behavior. Using that logic, a world in which cthomer is not made to suffer private economic damages because of his negligent anvil storage may actually see him subject to criminal liability for “negligent endangerment” or some other such “crime” that evolves as society tries to curb accident causing behavior.)
<o:p> </o:p>
Also, there is no reason to think that such a system would cut down appreciable on litigation. It would just shift its focus. In a no-fault world, most people would have “personal injury” insurance to make sure that their lives were not destroyed by cthomer and his unhappy anvils. Of course, when people would be injured, they would make a claim on their insurance which would challenge the claim—leading to litigation, not between WSUCougar and cthomer, but between WSUCougar and his insurance company.
<o:p> </o:p>
So, in short, a no fault world would probably increase accidents without decreasing litigation.
<o:p> </o:p>
C. Oooh, I know. Set up a public fund.
<o:p> </o:p>
I’ll throw out this suggestion to give Fritz, Bucc, Jon, etc. heart attacks. Set up a public fund to pay for injured people’s injuries. After all, shit happens, and there is nothing we can do about it. It’s a problem with which society has to deal—so let society deal with it through the government.
<o:p> </o:p>
This idea has several flaws in it from my perspective. First, we run into the same problem of shifting the burdens into which we run in the no fault world. Why should I care if I hurt you if Uncle Sam is going to pick up the tab? Also, why should my taxes go up if you are too much of a dumbass to fill up the hole in your front yard and your neighbor is too much of a dumbass not to fall into it and break his ankle? And, of course, whatever the government does tends to come with costs inherent to the bureaucracy. I am not in favor of a government as small as some on this board, but I certainly agree that it should not be expanded into this area.
<o:p> </o:p>
All in all, though some have suggested wholesale changes to the way in which personal injury lawsuits are done—there are problems with any alternative. The better approach may be to try to fix aspects of the current system to try to improve what problems do exist.<o:p></o:p>
<o:p> </o:p>
IV Problems with our system and solutions within the system
<o:p> </o:p>
The main problem with the system as perceived by the public—and expressed colloquially—“people bring frivolous lawsuits and end up receiving huge jury verdicts which are out of proportion both to the injury that they received and to the fault of the company paying out the judgment. Both the frequency of lawsuits and the enormous verdicts possible in these lawsuits make it hard for companies to do business and almost certainly dampen economic progress. And its just NOT FAIR.”
<o:p> </o:p>
As I have been writing the above paragraphs, I have been jotting down notes to myself of what all of these little changes could be. I had hoped to present them in an organized fashion, but I think that such an attempt would require more revision than I am willing and able to do at this point. Instead, I will simply discuss various ideas as they have occurred to me and leave it to y’all to devise creative solutions that play them off each other and incorporate them into a more holistic reform approach. Or you can just ignore me. Either way is cool.
<o:p> </o:p>
A. The Jury
<o:p> </o:p>
It is widely suspected that one of the main things driving the size of verdicts in recent times is the jury. Even the non-cynics among us can appreciate that when an important decision is left in the hands of 12 people who were not able to get out of jury duty, weird things can happen. There are two “problems” with the jury system. First, juries are random. You can screen them, you can try your case in front of mock ones, you can try to get a sense of them. But, ultimately, they can do some pretty weird stuff when they get back into the jury room. That randomness scares large companies who are the ones with millions on the line in lawsuits of this type. No matter how good their case is, if it gets to the jury, they may lose. Plaintiffs attorneys can use that threat of randomness as a sword to bully defendants into paying settlements that they would not otherwise be willing to pay. This increased likelihood of achieving settlement makes it more likely that suits will be brought. If cases were tried soley by judges, there would be a lot more predictability in the system, and people may be less likely to bring weak lawsuits in the hopes of scaring a settlement from a defendant.
<o:p> </o:p>
Juries also tend to have sympathies that affect their decisions. They may see the plaintiff sitting in that chair and picture themselves injured. They may also think that it is pretty cool that “one of their own” is now in a position to “win the lottery” and award an enormous verdict because that is what they would want to receive. Also, there is the basic human instinct of feeling more important as a juror if you award $500,000,000 instead of $5,000,000. In other words, juries may be inclined to “side” with the plaintiff when deciding on a damage award. When you combine that with their randomness, you can see why some people say that they are the beginning and the end of the problem.
<o:p> </o:p>
So let’s get rid of them, right? Well, even if we wanted to, we can’t. The Seventh Amendment preserves the right of a jury trial in actions of this sort. Nothing short of a constitutional amendment will get rid of juries in civil cases. They are here to stay. And that’s not necessarily a bad thing.
<o:p> </o:p>
If you look at the Bill of Rights (and if you have not lately—WHY NOT? Lots of men have died to preserve those freedoms. Don’t dishonor their memory by taking it for granted.) you notice that most of the provisions apply to keeping the government out of our business. Sitting there, somewhat incongruously among the right to worship as you please and the right to be secure from unreasonable search and seizure by the government, is a whole amendment dedicated to the idea that you have a right to have 12 honest men sit in review of your disputes with private parties. (quick aside, you may also note that jury trials are preserved “only” when the amount in controversy is $20 or more. As wise as the founding fathers were, they did not think to tie the Constitution to inflation). Why was this such an important issue? In short, the founding fathers did not want a repeat of what happened at times in <st1:country-region><st1:place>England</st1:place></st1:country-region>. Judges tended to be (and still tend to be) from the upper classes. As such, they would identify better with upper class people and the upper class lifestyle. Also, in the much smaller world in which they lived, the judges would know almost every other person in his economic circle. The early Americans feared that when a poor man was in a lawsuit against a rich man, the poor man would not get a fair shake if his fate was left in the hands of the rich man judge. By preserving the right to a jury trial, the founding fathers hoped to protect themselves from the tyranny of unfair judges who took a dim view of the “common man.” In their own words (I am taking these quotes from the recent case of Blakley v. <st1:State><st1:place>Washington</st1:place></st1:State>): John Adams notes that “[T]he common people, should have as complete a control . . . in every judgment of a court of judicature” as in the legislature, while Thomas Jefferson stated that “Were I called upon to decide whether the people had best be omitted in the
Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.”
<o:p> </o:p>
This mindset is not entirely out of place today. In a world in which lawsuits were in the almost complete control of trial judges, how important do you think those judges become? It all of a sudden becomes job 1 of the StateFarms of the world to make sure that their guys are on the bench. I think that we would see a lot more money thrown at judicial elections and/or appointment processes by large corporations and that the result of those elections may swing the pendulum too far the other way (i.e. people who really deserve money for their injuries not getting any). While I understand the problems with juries and realize that something should be done—I personally agree with the founding fathers that 12 honest men may be the best way to make sure that the system stays fair.
<o:p> </o:p>
Finally, for reasons too complex to discuss here, the Seventh Amendment “preserves” the right to a jury trial. The short of that means that if the government creates a system (i.e. worker’s comp.) that did not exist at the time of the Seventh Amendment, it does not need to provide a jury to adjudicate your rights in that system. Accordingly, you have certain quasi-public administrative agencies (worker’s comp is the biggest and most well known example) that have taken the place of traditional personal injury remedies. The driving force behind these administrative remedies is, in part, to circumvent the jury process.<o:p></o:p>
<o:p> </o:p>
B. Forum shopping/diversity
<o:p> </o:p>
A topic closely related to juries in the idea of forum shopping. Here is where I advocate for lots of reforms. State courts are divided into districts which tend to follow county lines or some other similar sized division. Plaintiffs lawyers know where to bring their suits. There are places in the country where you are much, much, much more likely to get a “sympathetic” jury than you would be elsewhere. When a plaintiffs lawyer wants to bring a suit against a corporation, she will do everything in her power to bring that suit in those particular districts. This practice distorts the jury’s role as the consciousness of the community and instead uses the jury to try to force a settlement or a large verdict from defendants. It would be like taking a “random” survey of people on this board and asking them if they enjoyed sports and computer games. There are systems in place to try to prevent this kind of “forum shopping” by plaintiffs, but I think that they should be a lot stronger. A couple of potential solutions—make the jury pools larger geographically (of course, then you have the problem of making jurors drive a long way to hear cases) or have the cases assigned “randomly” within the state court system (of course, if you live in Houston, you may not want to be forced to litigate your claims in El Paso). Something, in my opinion, must be done.
<o:p> </o:p>
Along these lines, here is another history lesson. There are two ways that a suit can be brought in Federal (as opposed to state) court. First, it can involve a federal law (not the case here as almost all laws of this type are state laws). Second, if the parties are citizens of different states (there are rules to determine the state of which a corporation is a “citizen”), then the case can be brought in federal court. Historically, this “diversity” law was passed because the founding fathers thought that a <st1:State><st1:place>Pennsylvania</st1:place></st1:State> guy being sued by a <st1:country-region><st1:place>Georgia</st1:place></st1:country-region> guy in <st1:country-region><st1:place>Georgia</st1:place></st1:country-region> state court may not get a fair shake and should have access to the more neutral federal forum (you have to remember that we were just a few years out of a confederation at this time). While concerns about regional prejudice have abated, diversity jurisdiction still serves an important purpose. Federal juries are drawn from larger pools than state juries. Accordingly, if a plaintiff sues you in one of these plaintiff friendly counties in state court, you—as the defendant—will want to move the case to federal court so as to get a more equitable jury.
<o:p> </o:p>
While diversity jurisdiction does dull the effects of forum shopping, I still find it to be a very inefficient way of solving the problem. First, federal courts are not the most efficient forum for interpreting state laws (for what I hope are obvious reasons). Second, parties know how important the forum is and will spend (read: waste) lots of time and money trying to keep certain parties in or out of a lawsuit in order to achieve (or defeat) diversity. I would prefer to get rid of diversity jurisdiction and implement reforms on the state level to prevent forum shopping.
<o:p> </o:p>
C. The rules of evidence
<o:p> </o:p>
The evidence that can and cannot be presented at trial is controlled by the federal or state rules of evidence (most state rules of evidence mirror the federal rules to a large extent). Though these rules are complicated enough to warrant their own class in law school, you can get by here with the general understanding that evidence should not be admitted if it is 1.) irrelevant to the case or 2.) likely to unfairly prejudice the jury. As should be obvious, a lot of a case can depend on what evidence is and is not admitted to the jury. Here are a couple of specific rules that tend to affect cases of this nature.
<o:p> </o:p>
First, parties are specifically barred from mentioning that the defendants have liability insurance to cover the injury. In other words, if you slip and fall on <st1:place>Cam</st1:place>’s lawn, and <st1:place>Cam</st1:place>’s damages will be paid by Allstate—your lawyer cannot mention to the jury that Allstate is picking up the tab instead of <st1:place>Cam</st1:place>. If the jury knows that Allstate’s deep pockets are picking up the tab, it will be less likely to make a fair decision in <st1:place>Cam</st1:place>’s favor and may be likely to find for you because “no one is really getting hurt.” This, by and large, is a good idea.
<o:p> </o:p>
Second, it is generally considered irrelevant (and therefore inadmissible) if the plaintiff has filed lawsuits in the past. The thinking here is that we don’t want a jury to look at past acts when deciding the merits of this case. Just because you happened to break your leg last year and sued someone does not mean that you did NOT do it this year, too. We don’t want a jury ruling against someone because it perceives him as “litigious.” This rule allows people to sue companies over and over based—in large part—on fake injuries. Because the jury does not know that they have had 10 slip and fall cases (leading to settlements) in the past, they don’t know that they are (probably) faking this suit. I would reform this rule to allow evidence of past lawsuits in certain extreme cases.
<o:p> </o:p>
D. Contingency Fees
<o:p> </o:p>
Lawyer’s who represent injured plaintiffs get paid by taking a percentage of the recovery that the plaintiff receives (Lawyers who defend the large corporations get paid hourly). This system is supposed to encourage the lawyers to only take/pursue meritorious claims and to advocate zealously for their clients because the lawyer’s remuneration is tied directly to the success of their client’s lawsuit. This system, however, works on the assumption that all the client cares about is money. Any other thing from which the client could benefit—and humans have varied and complex psychological needs—is not on their attorney’s radar.
<o:p> </o:p>
In addition, this system encourages lawyers to try to maximize payment/hours spent on a case. If an attorney can get you $500,000 in a quick settlement or $1,000,000 by investing 100 hours in the case, it is to his benefit to get you the money quickly so he can spend those 100 hours getting more quick settlements. In this way, the contingency system leads to a subset of plaintiffs lawyers who are in the game only for quick settlements.
<o:p> </o:p>
In addition because plaintiffs do not pay legal fees, defendants are much more likely to be forced into settlements by the threat of bearing large legal costs. Even if a defendant successfully “wins” a lawsuit, the money spent defending it is still a loss for defendants. In this way, there is an incentive for defendants to settle cases—even cases that they are likely to win. Of course, this means that plaintiffs are more likely to bring cases that should not be brought because they are not as likely to win.
<o:p> </o:p>
E. Rule 11 sanctions
<o:p> </o:p>
There is a procedure to sanction lawyers who act in an unprofessional manner. These are called Rule 11 Sanctions—after the Rule of Civil Procedure which authorizes a court to issue them. One solution to frivolous lawsuits would be to increase the prevalence of these sanctions given to plaintiffs lawyers who bring frivolous suits. Two things work against this potential reform.
<o:p> </o:p>
First, it will be difficult to strike a balance between cooling off frivolous suits and scaring lawyers from taking cases. If sanctions become too prevalent, then people who are actually injured may not be able to get representation. In addition, insurance companies may begin to focus on—not actual defense on the merits of a case—but getting a reputation as a defendant who always seeks sanctions against plaintiffs. In this manner, you will have a lot of additional litigation based on whether or not sanctions are warranted in a particular case. Any reform that increases litigation related to collateral issues will end up causing a general economic drain on the system.
<o:p> </o:p>
Second, the legal community is a small community. As a practical matter, it will be hard to get judges to issue sanctions against lawyers with whom they went to law school and who they see in court every week. In addition, lawyers, like doctors, like to believe that we are never wrong. A judge issuing a sanction against a lawyer has to admit, on some level, that a lawyer screwed up. That’s harder for a judge to admit than it would be for one of you to admit. Finally, if lots of lawyers are getting sanctioned, then the profession as a whole looks worse in the public eye.
<o:p> </o:p>
F. Get rid of vicarious employer/employee liability
<o:p> </o:p>
We could also get rid of the rule that an employer is vicariously liable for the torts of its employee. When Bob the UPS driver hits you, you can still sue Bob, but can’t sue UPS. This rule may cut down on litigation against deep pockets. Some (frivolous) lawsuits that are worth bringing against UPS may not be worth bringing against Bob. Therefore, without vicarious liability, there may be less litigation.
<o:p> </o:p>
However, I think that there is a lot of good to vicarious liability. Companies—who have the most control over the acts of the employees—are encouraged to be ubersafe. They are encouraged to be more than non-negligent. They are encouraged to prevent accidents if at all possible. In addition, UPS makes a lot of money specifically because Bob is in that truck. It seems fair on some level that UPS should pay for when stuff happens. The framework becomes sort of like the theory behind products liability.<o:p></o:p>
<o:p> </o:p>
G. More than $10,000
<o:p> </o:p>
Some reforms are simple. In <st1:State><st1:place>North Carolina</st1:place></st1:State> when you sue someone for over $10,000, you now state in the complaint only that that your damages are “over $10,000.” By making this simple change, doctors (and other defendants) have their reputation protected by not having “Dr. No sued for $25,000,000” plastered on the front page of the paper. By removing this arrow from the quiver of plaintiffs, <st1:State><st1:place>North Carolina</st1:place></st1:State> prevents extra-legal concerns from affecting the process to some small extent.
<o:p> </o:p>
H. Populist judges
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On the state level, lots of judges are elected. Some judges make sure that they keep getting elected by appealing to the populist sentiments of the community. These judges do whatever they can to make sure that defendants who end up in their court pay huge money judgments to plaintiffs in the community. In this manner, election is reassured. There are also judges who win elections by running ads funded by deep pocketed defendants. They do their best to make sure that defendants who end up in their court do not pay large money judgments. In this manner, election is reassured. There are, to keep it short, problems with elected judges.
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I. Emotional distress and Pain & Suffering
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Those of you who have managed to read this far have probably been waiting for this one. What the hell is emotional distress? Why do people get to receive damages for such nebulous concepts? Ohhh. I’m sad that you hit me with your car; give me money?
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One thing that people may not realize is that it is actually quite hard to receive damages for emotional distress. The courts have recognized for a long time that these damages are easy to fake, and have established systems to try to ensure (to the extent possible) that only valid claims for emotional distress are heard.
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One has to remember that—even though they seem weak and nebulous—these are real damages that people do sometimes suffer. Even though pain and suffering and emotional distress are hard to quantify, they do exist. In most states, you need to have some physical injury occur to be able to recover for emotional distress. The theory there is that the few valid cases of emotional distress that fall through the cracks are worth a system that manages to weed a lot of the invalid cases out.
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Pain and suffering is not even an independent claim on its own. It is simply damages for which one is able to recover once someone is found liable to someone else for a substantive tort.
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That said—it would be helpful—IMHO—to instruct juries on the ball park of what kind of damages tend to be given for certain cases. We hesitate to give any “advice” to the jury that would tend to overly sway its opinion. However, to me, there is nothing wrong with assuming that 12 random people really don’t know how much a lifetime of migraine headaches are worth. I would do more to allow juries to see what we consider to be “reasonable” amounts for various types of damages.
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J. Straight Damage Caps
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Some states have tried to take the simple approach and simply have an absolute cap for damages. No jury award can be for more than $X. Bad idea. These do not stop plaintiff’s lawyers from bring small frivolous claims and getting settlements. These do, however, stop the few people who legitimately suffer massive injuries from actually getting full compensation. Also, they allow corporations to simply budget for injuring people—meaning that they will be able to decide how many people to injure (on average) by a certain activity. If the activity is more profitable than the damages that will be paid out—there is no economic reason not to engage in the activity. Indeed, to value the lives and happiness of others over profits breaches the fiduciary duty to the shareholders.
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K. Punitive Damages
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If you can prove that the damage against you was caused by behavior that was part of a larger plan by the defendant, you can generally hit them with punitives (for example—if your breaks went out because of Ford’s policy to make cheap breaks on the theory that they might not get caught). These damages exist for several reasons. First, they encourage people to bring suits that they may not otherwise bring (because the damage to any one person is too low to incentivise a suit) with the hope of recovering more damages. Second, they work on the theory that not everyone injured is going to bring suit. These damages, then, reflect those not-brought suits and better represent the true cost of the behavior. Third, they are quasi-criminal in that they “punish” the defendant for behavior more blameworthy than negligence.
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Some people do not like punitives because they say that they encourage frivolous lawsuits. They also say that they encourage juries to go crazy and award jillion dollar awards. In addition, if Ford was bad to tens of thousands of people, why should I get all of that damages personally just because I am the one who brought suit? Some have advocated getting rid of punitives (bad idea because of all of the good they do as explained above). Some have said that we should keep them, but have the extra damages go into a state fund to be used for the public good (or to help treat the type of injury caused by the defendants). The problem with that system is that the state should not be allowed to benefit from the result of a proceeding controlled (by and large) by the state and its employees. In addition, what is the incentive of the plaintiff to bring the suit if the plaintiff is just going to get his little $ and the big $$$ will go into a fund that he never sees?
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The Supreme Court recently has struck down large punitive damage awards as a violation of the Due Process clause (the true intellectual conservatives don’t like this because it expands the constitution in a way the framers never intended. The political conservatives love it because it helps big businesses. The issue is a good litmus test for your “conservative” friends). Stay tuned for further developments.
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L. The Media
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Do you know how much money people have gotten from fast food restaurants because it made them fat? None. Zero. Zilch. It’s a dumbass claim and has been thrown out of court everytime that it has been brought. The system works and can catch bullshit. You’d never know that to hear the media talk. They love to publicize it everytime a BullShit claim is brought. That’s like making a news story every time someone walks in a doctor’s office and claims to have a strange disease. If I walk into my Dr.s and claim to have Ebola, I doubt that FoxNews will run a headline stating that Ebola is in <st1:country-region><st1:place>America</st1:place></st1:country-region>. However, if I bring a b.s. suit, you can bet that they will post it as if I had already gotten paid (and all the internet guys can get their Stella awards ready).
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Things are not as bad as they would have you believe. The system works and can catch bullshit. Some bad things slip through the cracks, but let’s just work on changing the bathwater, not on tossing the baby.
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V. Conclusion
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Jeeze that was freaking long. Oh, well. Hope it serves some purpose