Posted on 04/03/2008 10:25:52 AM PDT by shrinkermd
Tort reform: a political issue that never fully succeeds in the Oklahoma Legislature, but never dies. Year after year, the Republican caucuses in the state Senate and House of Representatives announce their intent to pass a comprehensive tort reform bill during the current legislative session. And year after year, the legislative session ends with the exchange of harsh press releases between Republicans and Democrats, and the promise to fight again the following year. The debate over tort reform is so contentious, opposing groups can’t even agree on what to call the issue.
“Lawsuit reform” is the term preferred by many supporters in presenting their arguments to common folks who may be unfamiliar with the more legalistic term. But the changes in law supporters seek to affect concern only lawsuits dealing with the area of law known as tort, that is, a civil wrong resulting in injury Supporters of tort reform, largely represented by business advocacy groups, say the U.S. legal system has been hijacked by trial lawyers who incite people to sue businesses or physicians based on flimsy claims in the hope of winning an unreasonably large award from an emotional jury, or even a sizable settlement from a defendant anxious to avoid a courtroom battle. Frivolous lawsuits are the main reason liability insurance premiums for businesses and doctors continue to escalate, claim tort reform supporters.
Opponents of tort reform take exception to the use of the word “reform” – which implies improvement – in reference to the changes in law proposed by tort reform advocates. The changes proposed would tilt the scales in favor of big businesses and physicians, hampering or even eliminating the ability of ordinary people who have been harmed by corporate malfeasance or medical malpractice to obtain compensation for their injury through the courts
(Excerpt) Read more at dolanmedia.com ...
I am a practicing lawyer in Oklahoma. I represent both plaintiffs and defendants.
I do not support tort reform in the form of caps. In fact, I think it is unConstitutional in that the government cannot limit the amount of recovery, if you have lost $1,000,000, you should get to recover $1,000,000. The grey area comes in when you get into how much is an arm worth, or emotional distress at seeing your child run over by a truck. But if we trust a jury to decide a death penalty, we have no choice but to trust a jury on a money matter, since the life/death question far outweighs the money question.
But on the defendants side, I can tell you that too many suits are brought, or litigation is grossly inflated, due to unsupportable claims, yet colorable enough to bring to keep the lawyer out of trouble with Rule 11 (sanctions for bringing frivolous suit). Rule 11, in short, states that you can’t bring a suit without some modicum of factual and legal support. But there is huge gap between Rule 11 and Summary Judgment or Dismissal, in which the only way to get a case dismissed is to show that there is evidence in existence that might support the Plaintiff’s claims.
Juries do a good job, mostly, of ascertaining damages. Some states are more liberal, some more conservative. Judges always have the power of remittitur if the judgment is not in accord with the facts. So, I don’t believe that part needs to be overhauled.
I do think the dismissal procedure needs to be overhauled. It could very well the process to remain intact, let every meritorious claim proceed, but dispose of the frivolous claims early in the process, in the least expensive manner.
bflr
As a lawyer, of course, you would be against it.
What would you think of a change of rules, where the jury could decide that a suit was frivolous, and if they so decided they could award to the defendant an amount up to what the plaintiff was suing for. With plaintiff and plaintiff counsel being jointly liable.
That is a function of the Court, since the jury is generally not versed in the procedural requirements for filing suit, but judge knows exactly what is sanctionable.
However, if there is an improper case brought, a party could bring a case for malicious prosecution or abuse of process, and the jury does decide whether those claims have merit or not.
I'm not talking about violations of procedural requirements. I'm talking about suits that are so outrageous that jurors can see that they are ridiculous. I'm talking about suits that have so little merit that the lawyer knows it's a 100-to-1 shot of getting a jury to award the plaintiff, but where the asked-for payoff is so huge the lawyer decides to play the lottery
In such a situation, if we can provide less incentive to "play the lottery", by making plaintiff AND COUNSEL subject to potentially major sanctions if the jury decides the suit is not just lacking in merit, but completely absurd, then we reduce frivolous suits
True costs should be recovered if the lawsuit is won plus a specific ceiling on punitive damages. $10,000,000, or whatever it was, for spilled coffee is outrageous and should have limits. Bush campaigned on this and never followed through, the wuss.
Bush could not have followed through on this, those caps are implemented by State Legislatures, not the federal executive branch.
I am a little surprised by those folks who are so aggravated at lawyers for taking a percentage of the award. You may not know how it works.
For every 10 cases you take on a contingency, probably half of them get dismissed, or 6-7 of them get dismissed or have such a low payoff, that the lawyer does not make his hourly wage. That means the other 3 cases that do come in, on the average must cover to make the whole 10 possible.
And it is no lottery. I had a med mal case in which the treating GP, failed to send his patient (my client) to the oncologist in the PPO, because it would keep the costs of the PPO down, and would reward him and the other doctors for keeping referrals down. The tumour grew from a pea size, to half of an apple, in about 6-7 months.
Ultimately, she tried to have the tumour cut out, but with no clear margins, the leg was amputated. The treating surgeon who had previously told us that she could have saved the leg even after 6 months, flipped her testimony and said she wasn’t sure if anyone could have saved her leg (doctors hardly ever testify against each other, especially if they are in the same insurance group). A complete defense verdict, when the GP admitted that he failed to send her to an oncologist, or have a $180 biopsy.
I also know, from practicing on my own, that there are a lot of folks who would be more than happy for you to work for them for free if they can get away with it. I liken lawyers to oncologists, you don’t ever really want to go see them unless something bad has happened. And if you are on the defense side, even if the lawyer does a great job, and wins, at the end of the day all he has done is put you back in the place you started before the suit.
Contingency fees are mainly for those who can’t afford lawyers. It is necessary to have the arrangement, because without it, many people would go without representation, and many valid claims would not be prosecuted.
My point regards the gap between sanctions under Rule 11 for patently frivolous claims, and non-sanctionable arguments that have no chance of winning, yet still require a tremendous amount of work and money to dismiss. My solution is to put a greater burden on the plaintiff to prove their claims are valid and meritorious, instead of the defendant trying to disprove the claims, where currently most of the money is spent.
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