Straight Up with Sherri

Tuesday, January 25, 2005

More on Tort: NOW We're Cookin'!

Okay, now we are talking.

I guess we will start with the premise that there is a difference between economic damages and punitive damages. I think we all recognize this as a fact. Then of course we have the compensatory damages, and the pain and suffering damages. Usually, economic damages are considered damages that you can actually show a receipt for (per se). The glitch in just leaving it at that is we run into the compensatory damages usually being included. Compensatory damages are considered the possible or projected earnings of the injured (or dead) person in the case. I have to agree with RWNJ on this one. There is room for abuse in this area. It is sad to value loss of life in this manner. I guess I must admit it is a viable part of the equation. Loss of a father that is a stock boy for WalMart will not compute as much in this area, as where a CEO for Viacom would calculate to be much higher. (I think RWNJ used a great example of this) Since the Compensatory damages are defined properly, this really should be a legitimate way of awarding judgments. I don’t like it, but it is a fact of life. It is hard to follow one’s own commitment to true justice and facts without all the “emotional” aspects and argue this point. How would you logically argue against a father’s children getting more or less in the compensatory phase of monetary judgment? I honestly don’t have an answer for this one.


However, when we get into the pain and suffering of children losing a father, it is a crapshoot. You can take one case, let 24 jurors in the courtroom to hear the case, and then split them into 2 groups of 12 and come up with 2 grossly different judgments; based solely on who the jurors are. Talk about STICKY! I don’t know how to approach this other than to make guidelines. This is not a great option to me because I don’t want a bunch of elected officials deciding what these monetary guidelines should be.

One of the biggest evils is the bombardment of frivolous lawsuits. I truly believe that the loser pays is the best fix for this. Although I have heard of another idea from someone far more educated on this matter than I am. Here is a sample of what this person had to say on this issue:

We should start from the premise that under our Constitutional system we have the right to a trial by jury. As James Madison so eloquently stated, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." Any proposed legislation must not infringe on this precious right.

So, how do we protect this right and at the same time protect (parties) from abusive lawsuits? The answer is relatively simple- enact laws which punish lawyers and parties who file frivolous lawsuits while at the same time preserving access to justice for those who have legitimate claims………

"The Frivolous Litigation Prevention Act." This bill (would ascertain) that ANYONE who files a frivolous lawsuit or asserts a frivolous defense would be subject to immediate sanctions, including paying all fees and costs as well as punitive damages. I also recommended a two strikes and you’re out provision which would allow a lawyer to be disbarred if he/she files two frivolous lawsuits. Guess what? The insurance companies OPPOSED this bill because they knew they would be subject to the law. President Bush and others have argued that we need to get rid of frivolous and junk lawsuits. I agree. My novel idea was to actually draft a bill (that) did just this and used the words "frivolous lawsuits " in the bill.

Levi from Queens brought up an excellent point dealing with the issue of rewards to the uninjured and the attack on industry that we face. He also brings up the loser pays option.

Dr. Liberty posed a great topic for discussion: “Where is the responsibility of the consumer? I submit that the debacle of the present day medical dilemma had more to do with insurance than medical procedure.”

In fact his comment reminded me of a comment by an anonymous visitor that shared this: “Once I had to retrieve a ladder used as exhibit "A" that some dummy fell off of and sued the manufacturer over. It was a twenty year old, aluminum ladder with loose hardware, bent steps and cracks in it. I remember telling the lawyer later that his client was an idiot for using that ladder and there is no way a jury would find the manufacturer at fault. Turns out, I was right and he lost, but no one reimbursed the company for their legal efforts.

Chip addressed the compensatory damages issue with this: “Compensatory damages are for actual economic losses. I wouldn't cap those. But non-economic, or speculative, damages probably should be capped. Punitive damages can get out of hand.” Which brings us into caps. I think caps are just NOT the answer by any means. I do however support the idea of punitive damages being an actual punishment such as jail time instead of cash awards. This would certainly perk the attention of people in decision making positions for large companies to pay more attention, and would not sock it to employees, investor etc. when they were not the ones making the decisions. (this was another great point by RWNJ)

Your turn folks. Have at it.

3 Comments:

  • I don't think the ban on frivolous lawsuits is good enough. Frivolous lawsuits are already subject to sanction. Almost no lawsuit is ever found frivolous because of the narrow definition. The ladder case above does not qualify as frivolous, just a lawsuit with a small probability of success. The costs of these low likelihood lawsuits need to be borne by the persons and lawyers who bring them.

    By Blogger levi from queens, at 6:43 AM  

  • levi from queens

    Good Morning. I agree. I love the idea of people (attorneys, etc) having to consider real consequences before filing silly suits. The loser pays should be included in ANY legislation. The amount of THREATS of suits in order to extort cash is obscene! Thanks for coming by!! Sherri

    By Blogger Straight Up with Sherri, at 7:04 AM  

  • I must also agree with levi from queens. As in the discussion I had had with Dr. Liberty earlier on this topic, we will need to determine just "who" gets to be the arbiter! Is it the Clerk of the Court, a Judge, a Jury? Duh! Clerks are gov't employees and gov't generally serves the rich and powerful. Judges are not doing a very good job of handling this issue now - just look at all the cases that are thrown out just to be reinstated by a higher court, or vice versa. The same juries that award absurd damages are going to consider a case's merit? (Arbitrary humans.) Sherri points out the crapshoot that occurs during jury selection. Sometimes it seems the trial is not even necessary - just select the right jury (Ever hear the rock opera - "Sid Allen and the Devil's Den" by Tom Harvey? Or "Tyler" by UB40?). Talk about an easy way for people who have already been harmed to lose their constitutional right to sue - through some administrative fiasco.

    By Blogger Right Wing Nut Job, at 10:24 AM  

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