Posted on 07/07/2010 5:14:51 AM PDT by Kaslin
I pegged you right to start with - you just want a boogeyman.
As far as legislating from the bench - it rarely happens in tort cases because the rules are so well developed.
But you probably know what happens in tort cases batter than I do.
There is no such pleading requirement in this state. At one time there was, so the natural reaction was to demand far more than what the case was worth, which made such pleadings meaningless.
I frankly find your analogy to a Nuremberg as insulting and smacking of ignorance. The determination of a jury is at the center of the tort dispute resolution system. Defending against personal injury cases involves a constant evaluation of the case and with it is worth - which is a function of what a JURY would do with it. If the jury gives away the farm, I have not done my job. I have missed the proper evaluation of critical evidence, I have erred in allowing inadmissable evidence into the case or I have acted like an asshole before the jury and they have punnished my client for it.
So if you think I "go on a fishing expedition for whatever you think you can bamboozle the jury into awarding," you clearly do not understand what I do. Plaintiff's lawyers likewise constantly evaluate their cases, to think what a JURY might do with it. So settlement ranges are might tighter than verdict ranges. I can guarantee you, if a jury gives a plaintiff a runaway verdict, their lawyers view it as a windfall. But it is theirs because a Jury has awarded it.
Finally, if it shocks the judicial conscience because it is excessive, the Court will vacate the award, and you try the case again. So much for Nuremberg.
I said get rid of contingency fee cases
You still haven't discussed my primary thrust - invading freedom of contract through state power by banning contingent fee contracts degrades our society that is based upon personal responsibility.
The Brittish rule is what it is because the Brits are focused upon preservation of status and capital - the moneyed hold on thightly to what is theirs. The lower classes be dammned. So their prohibition on contingenmt fees closes the courthouse doors to a great many instances where thier wrongful conduct has caused harm. It is a reflection of their society - one that is fuedal in nature and has historically viewed servitude as acceptable. But is that a good thing?
Our country is based upon individual responsibility. If you cause harm, you accept the consequences, even if it means you lose your foutune or your business. So as a society, we have made the economic choice that the cost of injuries be borne by those who cause them, rather than by those who suffer them - unlike in Britian, which not surprizingly has chosen socialized medicine.
The contingent fee contract reflects our choice as a society that commercial enterprises that wrongfully cause harm bear the cost of the injuries they cause, before they get to their bottom line. Safety becomes part planning for profitability.
So what is your justification for invading the right of any American to freedom of contract? You are doing nothing less, if you "get rid of contingency fee cases." The result is that a certain number of injured people will not receive compensation that will allow them to live independent lives. The cost of their care shifts to the State. It is a step toward socialism. From an economic point of view, why is increasing the size of government a good thing?
This is a boogeyman argument. Lawyers are so revied these days, that if you campaign on a platform that your oppponent voted for legislation that favored trial lawyers, and you made it stick, you would be at an advantage.
“This is a boogeyman argument.”
In some ways they have become the boogeymen and women due to the fact that everything we do is effected by the worry of a lawsuit.
I think this era began when attorneys began advertising on TV. Now everyone thinks that anytime something happens to them they deserve to be compensated.
One of the reforms I would like to see is how juries are selected.
Another phillip to the "I am entitled" attitude was the passage of the The Civil Rights Attorney's Fees Award Act of 1976 (Section 1988), which allows a Federal court to award reasonable attorneys' fees to a prevailing party in certain civil rights cases. A prevailing party may suffer only shame, embarassment or humiliation. Thus, everybody became "outraged" about everything.
One of the reforms I would like to see is how juries are selected.
If you have time I would be interested about hearing your thoughts on this.
“If you have time I would be interested about hearing your thoughts on this.”
In depth will take a little more thought but my number one would be elimination of jury selection experts.
That's a dodge. Nearly half of legislators are lawyers and you're only kidding yourself if you think they don't vote their self-interest.
As far as legislating from the bench - it rarely happens in tort cases because the rules are so well developed.
LOL! Any time you have a judge "interpret" law for a jury you have the opportunity for legislation from the bench which then becomes precedent. Rinse and repeat.
But you probably know what happens in tort cases batter than I do.
No, but I can spell better.
Ok, I'll bite. What is your solution?
Any time you have a judge "interpret" law for a jury you have the opportunity for legislation from the bench which then becomes precedent
A trial Judge rarely interprets the law and NEVER does so when instructing a jury in a tort case. The Judge simply reads a Model Jury Charge. He or she simply selects what law applies, based upon the evidence that has been presented. Furthermore, for the most part, torts are based upon common law. There is no interpretation by definition. Interpretation takes place only with laws that come from a legislature.
Ok, I'll bite. What is your solution?
The deafening silence of ignorance is the reply.
Most insurance companies pay exactly the same for a vaginal delivery as for a C-section. How does Feiger explain that?
The deafening silence of ignorance is the reply.
Such class.
Actually, there's a very simple solution. You want to be a maker of laws, then you may never again be a practitioner of laws. You accept public office, you resign from the bar. You don't like that, don't run for public office.
Now there's a workable solution, and one that will certianly ensure we have high quality legislators, not to mention judges and executives like the Attorney General. It elegantly deals with the right of the public to contract without government interference. It will truly lead to a smaller government involvement in everybody's lives. How conservative!
The topic is legislators, counselor, l-e-g-i-s-l-a-t-o-r-s. Do try to stay on topic. As for the rest of your sarcastic argle bargle, you're wasting my time.
Oh but I am on topic. You are not seeing the ramifications of your solution.
So once you are a l-e-g-i-s-l-a-t-o-r, your career ends. You cannot serve as a Judge, a clerk or in the Amninistrative Office of the Courts (Judicial Branch).
You cannot serve in the Public Defender's office, represent your wife in traffic court, advise a corporation on a merger or acquisition, work the Public Advocate's office or work for the public interest, like at Mark Levin's Landmark Legal (Private Practice).
You cannot be the Attorney General or work in the Attorney General's office, work as an Administrative Law Judge, appear in Administrative proceedings on behalf of public entities, for example, in rate making proceedings, etc. (Executive Branch).
You will be barred from multiple federal jobs like the FBI or any number of other federal jobs that require and active license to practice law.
And then there are the unintended consequences of this big government invasion of freedom of contract.
All because legislators may at some time pass a law the touches upon tort recoveries? Certainly, the quality of legislators will be exceedingly good, and the influence of political interest groups in backing them getting them elected will decrease vastly - that's a little argie bargie there - sorry...
Oh I see them clear as a bell. Once you have crossed the Rubicon into the arena of making law you must not be allowed to exploit the rules you just made, whether for profit or power.
As for the other branches of government, that is exactly the problem. When the Legislative and Judicial branches are all the same people there can be no effective check or balance. Arguably the Executive branch has become overrun by lawyers as well, certainly under Obama.
It is also nonsense to imagine that all of these pitiable ex-legislators would be unemployable in the other sectors based on their experience and contacts. They just wouldn't be able to wield the sword themselves.
And then there are the unintended consequences of this big government invasion of freedom of contract.
LOL! There are innumerable restrictions on freedom of contract now based on rules made up by, guess who, lawyers.
...and the influence of political interest groups in backing them getting them elected...
You mean like the Trial Lawyers?
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