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

[MattTheSkywalker]

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

It's not about what is malpractice, and what isn't malpractice. It's about whether you can convince a jury that it's malpractice.

yes, and there are 10000000 phiolsophical discussions about this we could have, but to what end? Until the truth serum arrives and philospher-kings rule the Earth, the jury trial is the means by which disputes will be resolved.

There is no point in a productive discussion to discussing the shortcomings of the system that cannot change. We can change "who pays" but the trial by jury is Constitutional.

A settlement is like a bird in hand - it's better than two in the bush. Granted, it will be lower than a jury verdict - but there's a big possibility that the jury might find for defendant.

A settlement gets the plaintiff a smaller lump sum, and saves him the aggravation, time, and money involved with discovery, motion practice, etc.

Yes, it also precludes a trial which means that there will be no case law, and no precedent for use in subsequent suits, because almost all settlemetns come with a clause that says "defendant makes no admission of liability" or similar language.

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.

Yes, settlements make everything MORE expensive. Are you law student?

All that happens with a settlement is lawyers do less work and get paid faster. That's it!

 

[MattTheSkywalker]

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

You obviously have something so wedged up your ass about lawyers, that nothing anyone says that defends the occupation will matter to you.

Same to you, no? Other side of the coin yes?

Difference between us is, while you go to the same trough every day to eat, I am part of something that has already taken approximately 25 lawyers out of practice, put a national law firm out of business, and changed the fee schedules for numerous others.

And that's just the beginning. I am walking the walk as well as talking the talk.

The fact is that cases are rarely black and white. if they were black and white you wouldnt need judges and juries.

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

Your implications that cases that arent 100 percent shouldnt go to trial is idiotic. You think people who go to court must be 100 PERCENT positive that they will win? give me a break.

The point is that people should only invoke the legal system if they are confident they have been wronged. The "loser pays" system guarantees that plaintiffs will sue ONLY when they feel that they are truly wronged.

You know and I know that many case are brought in hopes of getting a settlement.

You go to court if you think you have been wronged. It is then the judge or jury to determine if the case is worthwhile. If the case is total bullshit, the opposing side will make a motion for summary judgment to dismiss the complaint before much money has been spent.

Yeah, and with a loser pays model,that case would not have even arrived.

As for this statement that you made "Sounds like you're entrenched in a system where "almost" or "maybe" is enough." What is your problem? You are coming off like T-boy (no offense T-boy). No one said that almost is enough. But "Maybe" is enough to bring a case to court. But OF COURSE "maybe" is NOT enough to win at trial. Who said it was? No one even inferred that.

This is emotion not logic, has nothing to do with the subject of the post.

The fact is that judges/juries are here to resolve disputes. You have 2 sides that think differently. One side thinks the doctor made no mistake, while the other side thinks that the doctor committed malpractice. So they go to a judge/jury to find out who is right. GREAT SYSTEM!!!

When they settle the process is derailed. Let's try these cases, like you said, and hand the bills to the losers.

 

[asiansinc]

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

yes, and there are 10000000 phiolsophical discussions about this we could have, but to what end? Until the truth serum arrives and philospher-kings rule the Earth, the jury trial is the means by which disputes will be resolved.

There is no point in a productive discussion to discussing the shortcomings of the system that cannot change. We can change "who pays" but the trial by jury is Constitutional.

I think we are in agreement here.

The jury trial is the way of solving disputes that have not yet been settled. However, most cases settle.

Yes, it also precludes a trial which means that there will be no case law, and no precedent for use in subsequent suits, because almost all settlemetns come with a clause that says "defendant makes no admission of liability" or similar language.

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.

Yes, settlements make everything MORE expensive. Are you law student?

All that happens with a settlement is lawyers do less work and get paid faster. That's it!

Settlements may make things more expensive in the long run. But in the short run, the client (who should always come first) gets paid faster.

Would you rather have plaintiff's attorneys bring all cases to trial? If that happened, the attorneys would stop accepting a percentage of the award as their fee, and they'd start billing hourly like defense attorneys.

Then the poor schmucks who got screwed over by big, bad businesses wouldn't be able to afford an attorney who could go against the Cravaths and Skaddens of the corporate world. Their kids would have to start turning tricks on the corner to pay for poppa's medical bills.

 

[MattTheSkywalker]

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

Settlements may make things more expensive in the long run. But in the short run, the client (who should always come first) gets paid faster.

Short run thinking is not the way to legislate.

Would you rather have plaintiff's attorneys bring all cases to trial? If that happened, the attorneys would stop accepting a percentage of the award as their fee, and they'd start billing hourly like defense attorneys.

Then the poor schmucks who got screwed over by big, bad businesses wouldn't be able to afford an attorney who could go against the Cravaths and Skaddens of the corporate world. Their kids would have to start turning tricks on the corner to pay for poppa's medical bills.

With a loser pays system, this is not an issue. The plaintiff either wins, which means that they pay nothing, or they lose, which means the case was without merit, and should pay.

 

[primetime21]

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

When they settle the process is derailed. Let's try these cases, like you said, and hand the bills to the losers.

If cases dont settle y ou will need a 300 percent increase (at least) in the amount of judges. And you would need alot more juries. That is not practical. Not even in the least.

Again, handing the bill to the loser is something out of the mouth of big insurance companies. Imagine Grandma Jones. She has been the victim of a terrible accident and believes it wasnt her fault. However, she is not 100 percent sure a jury would think so, since there are no witness (aside from the 2 parties). (remember most cases have no witnesses. Its usually he said/she said).

back to grandma. SHe has a broken hip and will never be able to walk again. However, if she sues and loses (because the jury HAPPENS to believe the defendant/insurance company version of the story) she will have to pay out thousands in atty's fees that she cannot afford because she lives on a fixed income. So eventhough she would have probably won at trial or even settled, she is now stuck with nothing. Who is going to help grandma now? Matt?

I will respond to the rest of your arguments when i get back from the gym.

 

[atlantabiolab]

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

You obviously have something so wedged up your ass about lawyers, that nothing anyone says that defends the occupation will matter to you.

I have nothing against the legal system, which is a major safeguard for individuals against violations of liberty, but it has a major downfall: people. Since it is composed of individuals, it, like all professions, is very prone to abuse, and when it becomes heavily indoctrinated in unethical practices the good suffer the animosity of society.

The fact is that cases are rarely black and white. if they were black and white you wouldnt need judges and juries.

If it is not black and white, then how can it be concluded? Ethics is about "black" and "white", "good" and "bad", not greys. A person must be wronged to warrant restitution. Simply because they "think" that they are wronged means nothing. Reality dictates this, there is no middle between "right" and "wrong", they are contraries.

Your implications that cases that arent 100 percent shouldnt go to trial is idiotic. You think people who go to court must be 100 PERCENT positive that they will win? give me a break.

Not that they are positive that they would win, but positive that they are wronged, truly wronged, not inconvenienced, not hoping for settlements. People should know how to determine they are wronged, and when they don't and waste the courts' time, then I propose the use of a present power of judges, which is fining them for "frivolous use of the court".

You go to court if you think you have been wronged. It is then the judge or jury to determine if the case is worthwhile. If the case is total bullshit, the opposing side will make a motion for summary judgment to dismiss the complaint before much money has been spent.

As for this statement that you made "Sounds like you're entrenched in a system where "almost" or "maybe" is enough." What is your problem? You are coming off like T-boy (no offense T-boy). No one said that almost is enough. But "Maybe" is enough to bring a case to court. But OF COURSE "maybe" is NOT enough to win at trial. Who said it was? No one even inferred that.

Actually major factors in trials is jury selection and theatrics. Being a scientist, I can attest to the use of pseudo-science and emotionalism that is utilized to sway a jury. This is a major reason why I don't agree with "loser pays", since truth is not the goal, but illusion.

Try being a juror if you have a degree, have a political stance --Hell!--even a job could preclude you. Lawyers have learned to pick the lowest common denominators of society to judge cases, essentially those who are easily manipulated.

The fact is that judges/juries are here to resolve disputes. You have 2 sides that think differently. One side thinks the doctor made no mistake, while the other side thinks that the doctor committed malpractice. So they go to a judge/jury to find out who is right. GREAT SYSTEM!!!

Great system, if it weren't for people. With the collective hatred of business men, corporations, etc., the jury tends to have a preconceived bias against them, not the mention the common belief that "well he/she/they have money anyway, so it won't hurt them."

 

[asiansinc]

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

Short run thinking is not the way to legislate.

With a loser pays system, this is not an issue. The plaintiff either wins, which means that they pay nothing, or they lose, which means the case was without merit, and should pay.

How do you propose we legislate?

I appreciate and understand that you've put a large national law firm out of business. Good for you. With so much contact with lawyers, I'm sure you know that occasionally cases with lots of merit lose, for whatever reason.

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?

 

[asiansinc]

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

I have nothing against the legal system, which is a major safeguard for individuals against violations of liberty, but it has a major downfall: people. Since it is composed of individuals, it, like all professions, is very prone to abuse, and when it becomes heavily indoctrinated in unethical practices the good suffer the animosity of society.

If it is not black and white, then how can it be concluded? Ethics is about "black" and "white", "good" and "bad", not greys. A person must be wronged to warrant restitution. Simply because they "think" that they are wronged means nothing. Reality dictates this, there is no middle between "right" and "wrong", they are contraries.

Isn't ethics a human creation? Do people not have differing ideas of what is "right" and what is "wrong?" Maybe not at the extreme ends of the spectrum (e.g., killing is almost always considered wrong) but the middle ground in "reality" is not black and white.

Not that they are positive that they would win, but positive that they are wronged, truly wronged, not inconvenienced, not hoping for settlements. People should know how to determine they are wronged, and when they don't and waste the courts' time, then I propose the use of a present power of judges, which is fining them for "frivolous use of the court".

I'm all against frivolous suits, even though they put money in my pocket. But what's your point?

It's really not a matter of whether someone was truly wronged. It's a matter of whether they can prove it to the jury, as you stated below.

Actually major factors in trials is jury selection and theatrics. Being a scientist, I can attest to the use of pseudo-science and emotionalism that is utilized to sway a jury. This is a major reason why I don't agree with "loser pays", since truth is not the goal, but illusion.

Try being a juror if you have a degree, have a political stance --Hell!--even a job could preclude you. Lawyers have learned to pick the lowest common denominators of society to judge cases, essentially those who are easily manipulated.

All in the name of zealous representation. If the other side is going to do as much, not doing so could cost your client the case.

Great system, if it weren't for people. With the collective hatred of business men, corporations, etc., the jury tends to have a preconceived bias against them, not the mention the common belief that "well he/she/they have money anyway, so it won't hurt them."

That's true but quite unfortunate. I know of a very good doctor that was sued a time or two too many, and his insurance premiums increased to an amount way above his salary, thus making it financially unfeasible to practice in the area. Many locales are experiencing an exodus of doctors in "high-risk" fields such as OB/GYN, neurosurgery, etc. Very sad for those who live in the area... but what to do?

 

[atlantabiolab]

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

Isn't ethics a human creation? Do people not have differing ideas of what is "right" and what is "wrong?" Maybe not at the extreme ends of the spectrum (e.g., killing is almost always considered wrong) but the middle ground in "reality" is not black and white.

It is a human creation to the extent that physics is a human creation, to the extent that microbiology is a human creation, etc. Ethics is the science of human action. It is the investigation of "right" and "wrong" actions, if it is subjective then you cannot claim anything is right or wrong, even murder, rape, slavery, etc.

Your argument is a common misconception, that only the universally accepted morals: murder, theft, etc. are true morals. How can one objectively claim that these actions are immoral, and not be able to determine if abandoning one's child is immoral, or adultery is immoral, or incest, etc? What makes the major crimes reasonable and the latter subjective?

We have accepted the irrationalist ideologies of deconstructionalism, positivism, Marxism, that there is no real "right" and "wrong" simply social constructs agreed upon by the consensus of the day, capable of flux at any given time.

 

[primetime21]

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

If it is not black and white, then how can it be concluded? Ethics is about "black" and "white", "good" and "bad", not greys. A person must be wronged to warrant restitution. Simply because they "think" that they are wronged means nothing. Reality dictates this, there is no middle between "right" and "wrong", they are contraries.

How many things in life are 100 percent certain. If an accident occurred at 3 AM and there were no witnesses, under your theory NO ONE could win since there is NO way of knowing who committed the wrong.

However, in our system there are certain factors to consider. one of which is the juries ability to determine who is being more truthful. A judge can determine that since the defendant hit the plaintiff in the rear of the car that the defendant is negligent, UNLESS the defendant comes up for a reason for following too closely.

There can never be a PERFECT system. However, the american system is damn good. I dont represent plaintiffs or defendants. I watch the system work daily. I see the right thing being done more often than not. Is it perfect? No. But what in our lives is perfect?