Saturday, June 11, 2005

Tort Reform or Jury Elimination: Pt. II

A reader named Rattlerd posted the following comment:

I guess I am probably a law-and-economics type - a CPA with an econ undergrad who is about to start law school - but I can appreciate what is conveyed here. Still, doesn't the legal profession have to admit to a certain level of abuse considering cases like the never-ending litigation of fen-phen and asbestos? Or at least accept that a perception of abuse is legitimate on behalf of the public when they see Texas Hammer and Strong Arm types airing TV commercials with cash register sound effects?

To respond to Rattlerd:

Is the solution to problems with excesses in lawyer advertising to reduce jury awards when they are justified? Such excesses exist, and they are, at best, tacky. But why should tort victims be the ones to pay for them?

Is the solution to the legislature's failure to write procedures to properly handle mass-tort litigation to reduce jury awards to those who are injured, killed or maimed? Mass torts - like fen-phen, tobacco lawsuits, and asbestos - take a huge toll on our courts. But would it not make more sense to have procedures allowing common issues (e.g., causation, liability, etc.) to be determined in one trial, and then to have only damage award determinations in the remainder? Must each case be relitigated as though these issues had never been raised before?

But this is a problem with our procedural codes. And I would suggest that the corporate defendants in these cases do not want to face such procedures, in which one loss may open the doorway to hundreds, thousands, or millions of claimants. However, as the public cost of a district court, on average, is about $1000 an hour, the corporate lobbyists should be forced to take a backseat to public economy.

And in any event, is the way to handle the failure of the legislature to draft and enact appropriate procedures to handle mass-tort litigation to gut the damages awards to victims?

The tort reform bills that have either passed or been suggested have nothing to do with reining in lawsuit abuse. They deal with reducing damage awards in cases with actual, bona fide victims. I would suggest this is because the corporate sponsors of tort reform are more concerned with the awards they have to pay their REAL victims than they are with the costs of frivolous litigation.

If the latter was the concern, a loser-pay system would be their goal, or at least a system to require plaintiffs or their counsel to reimburse defendants if the litigation is dismissed as frivolous. We aren't hearing many cries for those sorts of reforms.

The same people who demand draconian levels of individual responsibility in the criminal justice system seem to seek dramatically reduced levels of responsibility for defendants in the civil justice system. That isn't ideology, but history. Ideology comes in when you try to justify it, and the justifications Jurygeek has seen to date ain't pretty.


At 10:36 AM, Blogger rattlerd said...

Thanks for the post, JG - it's good to get background from someone with experience in the field. I also appreciate you diverting the focus of your blog a bit to follow this thread.


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