November 14, 2002
Tort Reform Part II
Tort Reform Part II
The process of tort awards can go badly wrong for several reasons. One, as Acidman points out in the comments to Part I below, is that sometimes "12 total assholes on a jury" award an outrageous amount that has no rational relationship to the harm suffered. A jury pool is somewhat limited, and bears little resemblance to the average person. It's usually composed of registered voters, not the population at large. It then gets narrowed down to people who can't think up a good reason to be excused, those who have their own hidden agenda, and the few decent people who believe it's their civic duty. (I'm not a cynic, I'm a hyper-realist.) Then we attorneys further reduce the pool by voire dire, the process of us asking potential jurors endless questions to try & guess how likely it is a juror will find for our client. As a colleague of mine put it, at best this is a crap shoot, you rolls the dice & takes your chances. And I'm sure you'll be shocked to learn that during this process, people lie, withhold information, etc. An imperfect process, to say the least.So, you're probably thinking, this just proves that we need a cap on the amount on how much a jury can award. How are you going to decide what that amount should be? Take an average for each type of case? Who's going to determine the average? What criteria should they use? What about new types of cases? What you'll end up with is a real tar baby. And those unintended consequences are going to bite you in the ass. What do you do when costs of dealing with the consequences of a person's injury are higher than the cap? How do you deter companies who are prone to run a cost-benefit analysis and decide it's cheaper to pay off the relatively few injured who make it to court than to replace a defective part?
There are much simpler ways to control outrageous awards. One suggestion is to replace regular juries with either professional juries, as in some European countries, or with a 3 judge panel. Might work, though I think you're running a risk of those being composed of people who are too sympathetic to one side or the other.
My suggestion? (You lawyer-bashers are gonna love this.) Cap the attorney's fees. Set a billing rate at 1/2 to 2/3 the normal billing rate, with a maximum over-all cap. Require attorneys to submit a detailed billing, with appropriate documentation, to the judge, who has to review & sign off. Set up an independent office whose sole function is to further review, substantiate and approve all requests for attorney's fees & costs before the attorney can be paid. You can hear those trial attorneys squealing now, can't you?
But, you might argue, won't that have the effect of preventing legitimate lawsuits because attorneys won't take them? Bullshit. That's the way I get paid for every deprived child case I take. There's a whole bunch of us that know we're not going to get rich, but we get paid a decent enough wage. We also believe that what we do is more important than getting rich. There are enough other like us to ensure that this won't happen. Plus, Federal law has already done this. If you file certain tort claims against a govermental agency, there is a limit on how much can be paid out of any award or settlement in attorney's fees.
If you take away the outrageous attorney's fees, you get rid of the attorneys who will file any lawsuit, no matter how ridiculous, just to get rich(er) quick. This way you don't have mess around with the jury system. You don't have the problems associated with award caps. And you don't take away the deterrent against companies who might do bad things. Call it the "Barney Fife" approach. You just gotta nip it in the bud, nip it in the bud.
Posted by Rita at November 14, 2002 02:03 PM