We have GOT to do something about litigation....

[primetime21]

Re: Re: Re: Re: Re: Re: We have GOT to do something about litigation....

[B

True. That's why the system was conceived for judges and juries, not settlements.

[/B]

This is were you lose me. Most cases settle. Actually most cases settle before the case is even brought to court.

And then once brough to court, many cases settle before the day of trial.

And then at the day of trial most cases then settle before a jury is even picked.

And then after a jury is picked, most cases settle before the jury makes a decision.

Here is an example. In one particular courthouse (that is VERY busy), one judge has been on the bench for about 3 years. That judge has had maybe 12 cases go to a jury. However, approximately 150 cases have settled by him or his assistant or by the parties without any assistance by the court.

Most parties (plaintiffs and defendants) are afraid of trials and are afraid of what a jury can do. So they often settle to avoid a jury. Once in a while, when a case just cant be settled it goes to a jury. Usually they do a good job. Occasionally, they fuck up. However, even if they fuck up there are still remedies the aggrieved party has to get the mistake corrected.

 

[VicTusDeuS]

Read that book the Runaway Jury by John Grisham...I had to read that for my business law class. Very interesting book but a little far fetched in the end when the main people never got hit for insider trading.

 

[MattTheSkywalker]

Re: Re: Re: Re: Re: Re: Re: Re: Re: We have GOT to do something about litigation....

I now direct you to primetime's example of Grandma Jones. That is a more direct way of getting across my earlier point of plaintiff's attorneys billing hourly.

What do we do in cases like Grandma Jones?

That's the classic argument for the system as it is - what about this poor little old lady against the big bad mean corporation?

The thing is, the fact that one has to point to such contrived examples to argue for the conitnuation of this system is itself evidence that the system is heavily flawed.

 

[asiansinc]

That example isn't contrived at all. I see cases similar to this in medical malpractice all the time.

 

[spike1205]

Originally posted by MattTheSkywalker
Ironically, because these settlements cannot be used as evidence in subsequent suits (whereas a finding by a jury can be), the costs of litigation actually go UP with a settlement, because every future case has to be litigated separately.
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if only a small percentage actually make it to trial and the rest are settled how does that cause higher litigation costs except on defendants (most of whom have, wheteher you believe it or not, perpetrated some act that casued someone to sue, except in fraudulent cases). As for judicial system economy settlements are great for clearing the calendar and settling issues without the need for a magistrate or for jurors--thus saving time and money --money from everybodies pockets (ie taxes)

how does that cost go up--the costs on the system would be far greater (through spread through the tax base) then the cost to those who have to defend (ie insurance companies). So the cost in the long run would be greater if there was a restrcuturing of the legal system away from settlement

 

[MattTheSkywalker]

if only a small percentage actually make it to trial and the rest are settled how does that cause higher litigation costs except on defendants (most of whom have, wheteher you believe it or not, perpetrated some act that casued someone to sue, except in fraudulent cases). As for judicial system economy settlements are great for clearing the calendar and settling issues without the need for a magistrate or for jurors--thus saving time and money --money from everybodies pockets (ie taxes)

Law student? lawyer? Just wondering.

The costs are higher with settlements because subsequent lawsuits do not allow for introduction of what was discussed during settlement talks as evidence. Settlements are almost always negotiated "without admission of liability" meaning subsequent litigation against the same party has to commence fom day 1. This is done tolimit class action possibilities, but results in the same cases being brought over and over.

This has the double impact of precluding a true remedy for a wrong, increasing the costs of litigation, and foricng the defendant to raise prices and take money away from core business activities (lay people off, stop investing) to pay the settlements. Everybody loses, except the lawyers collecting fees.

For excellent examples, look into some pharmaceutical settlements involving Prozac, Zoloft and the like.

Then as to the issue of defendants "wronging someone": the idea of a tort system and the current standards for negligence (reasonable person, duty breached) have become comical and need to be legislated away. The courts have turned into a fiasco of class warfare.

how does that cost go up--the costs on the system would be far greater (through spread through the tax base) then the cost to those who have to defend (ie insurance companies). So the cost in the long run would be greater if there was a restrcuturing of the legal system away from settlement

Those increased tax costs would be offset by the drop in the number of lawsuits. The decreased prices of goods and services as companies breathed a little easier would actually benefit everyone, except lwyers.

 

[asiansinc]

I'm not saying that the tort system doesn't need some type of reform, but you haven't addressed this point:

How does a poor person who has been wronged afford an attorney?

Here are some replies to answers you may come up with:

If loser pays, then most personal injury attorneys still working on a contingency basis will only take cases that they are 110% sure they can win. Most cases are not like that.

Say what you want about black and white, right and wrong, morals, deconstructionism, etc. But the reality of the courtroom is that despite a definite wrong suffered by plaintiff, the evidence may not be convincing enough for the jury. Then what? Let's say plaintiff loses. Plaintiff's attorney doesn't get paid. This happens a few times, and the PI attorney can't eat as well as he formerly did under the non-British fee system.

So sooner or later the PI attorney will switch to billing hourly. With rates at several hundred dollars an hour, and with most cases taking years before completion, what is an indigent injured to do?

 

[MattTheSkywalker]

I'm not saying that the tort system doesn't need some type of reform, but you haven't addressed this point:

How does a poor person who has been wronged afford an attorney?

Here are some replies to answers you may come up with:

If loser pays, then most personal injury attorneys still working on a contingency basis will only take cases that they are 110% sure they can win. Most cases are not like that.

I know. I've managed litigation of over $300M of cases.

Say what you want about black and white, right and wrong, morals, deconstructionism, etc. But the reality of the courtroom is that despite a definite wrong suffered by plaintiff, the evidence may not be convincing enough for the jury. Then what? Let's say plaintiff loses. Plaintiff's attorney doesn't get paid. This happens a few times, and the PI attorney can't eat as well as he formerly did under the non-British fee system.

We're talking past each other. Settlements aer not designed to "get poor people justice." The plaintiff doesn't settle, the defendant does. Defendants settle when they think they'd lose at trial, or when it is cheaper for them to pay one settlement than it is for them to risk:

1. A high jury award
2. Their negligence becoming public record. (The real cost in many cases)

A defendant would rather pay one plaintiff than 1000, so they settle with no admission of liability.

In a situation of one-time negligence, settlements are again an economic decision. Allowing a plaintiff to get paid without a trial creates a huge number of prospective plaintiffs. Make them try the case and allow the market to sort it out.

So sooner or later the PI attorney will switch to billing hourly. With rates at several hundred dollars an hour, and with most cases taking years before completion, what is an indigent injured to do?

The free market will work its magic here too. If the PI atty has to bill hourly and can't get business, he either goes back to contingenyc, or goes out of business. Onlylawyers who can win trials will take cases. What's wrong with that?

 

[asiansinc]

You're saying plaintiffs don't settle, defendants settle.

Previously you said that plaintiffs often start suits in hopes of settlement.

I'm not sure that the two are mutually exclusive, but still...

I mostly agree with everything you've said. But you haven't answered the question, and I'm just curious as to what your thoughts are.

In the loser pays system that you advocate, how does a poor person with a definite injury but with less definite evidentiary proof afford an attorney?

 

[MattTheSkywalker]

You're saying plaintiffs don't settle, defendants settle.

Previously you said that plaintiffs often start suits in hopes of settlement.

A system has arisen that incentivizes defendants settling. Plaintiffs know this, and if they don't, there are plenty of PI lawyers around.

[qute]
I mostly agree with everything you've said. But you haven't answered the question, and I'm just curious as to what your thoughts are.

In the loser pays system that you advocate, how does a poor person with a definite injury but with less definite evidentiary proof afford an attorney? [/QUOTE]

The fee model doesn't have to change. The PI atty just has to be able to win a trial.