Law Suits and Popular Ignorance

[Camille]

Originally Posted by charlestudor2005

When you're afraid to let a jury decide the merits of a case, you've so abused a democratic system that it's become disfigured.

Whoa. Hang on a second there Charles. I disagree with that.

I had a bad non-fault car accident a few years back (in the US).
After a criminal and civil case, 3 years down the line I was made several offers, finally culminating in their "Final" offer. The final offer left me about 30 grand out of pocket (meaning I was not back in the position I was in before the accident). I had a choice...go forth to trial or accept.

A bit of background...
I was a student here at the time of the accident.
That meant no work allowed (those are the rules set forth by Immigration). Whilst I had no loss of income, I had incurred extra costs..because I had to take almost a year out of grad school to recuperate BUT I still had rent etc to pay. The only way I was going to get those costs back was to go to trial...because the insurance company were not interested in considering anything that wasn't "hard" tangible financial data such as loss of earnings. Given the outcome of the criminal trial and various other factors, I was pretty sure I had a good shot at recouping those costs with a jury..however, I settled. I chose this option because other people had helped me cover the costs of living whilst I went through this and I couldn't expect them to sit around for lord knows how many more years to ensure we were all back in pocket. In short, it's not always simple as you just stated....
I will say this. The 1/3 that my atty got was not near enough compensation for the time and effort he put into that whole case. Despite that, he did not push me one way or another..he spelt out the pros and cons of both options and let me decide. He never moaned or made me feel like I was one of a bunch of options he was dealing with. In my mind, his skillset was secondary to his commitment (which is why I stuck with him for future work)...although that's probably a bit harsh as he is a very talented lawyer.

So Charles, back to your original statement. What should I have done to not "abuse the democratic system?" I'm interested to hear this....

[Mazomaniac]

Originally Posted by Camille

I had a choice...go forth to trial or accept.

But Camille, this is exactly the point.

You had a choice and you made it based on factors that were important to you at the time. You were able to balance economic factors for personal ones - something that a well functioning judicial system should allow you to do.

Imagine, though, if there was rule that you had to go to trial. Would that had helped your situation? Of course not. Same with a rule that keeps you out of the courts. That wouldn't be fair to some people either. Allowing flexibility in the justice system is a good thing.

Messing with the justice system by artificially capping damages skews the process of justice in favor of the richer, more powerful party. If there had been a damages cap in your accident case I can guarantee you that the settlement offer would have been even lower because your risk of going to trial would have been even higher. How would that have helped you?

The settlement process is, once again, nothing more than a free-market way of deciding what a claim is worth.By capping damages you're the ability of that system to work efficiently. That's what I love about the right-wing attitude on this: regulation sucks in the marketplace except when we can apply it to tort reform in order to save our own ass.

Next time you hear a businessman talking about the overriding need for tort reform ask him if he also applies that logic to things like patent cases. Pharma companies love to yell and scream about the cost of drug liability cases. They then turn around and spend hundreds of millions every year suing each other for patent infringement. Yeah, they're clearing looking out for the general good.

Cheers,
Mazo.

[Camille]

Originally Posted by Mazomaniac

But Camille, this is exactly the point.

You had a choice and you made it based on factors that were important to you at the time.

Yes! That's exactly what I am saying and why I am refuting the claim by Charles that anyone that does not go to Jury trial is abusing the system. There are mitigating factors that prevent that at times..and it's not because people are shit scared of losing! I don't blame anyone for the choice I made....but I do say "rubbish" to the notion that going to trial is as straightforward as Charles said. Knackers to that.

C xx

Ok, I think we were posting at the same time Mazo. I didnt see your reply before posting this.

[Mazomaniac]

Originally Posted by Camille

So Charles, back to your original statement. What should I have done to not "abuse the democratic system?" I'm interested to hear this....

OK, so I spouted off before your last edit.

He's not saying that you're abusing the system. He's saying that the people who want "tort reform" are.

Damage caps do one thing: they put up an additional barrier between the poor and the jury system. With damage caps in place there's a even bigger incentive to settle for less than the claim is truly worth. That creates an even bigger imbalance between the rich and the poor and is, I agree, anti-democratic.

Cheers,
Mazo.

[Camille]

delete

[charlestudor2005]

Originally Posted by charlestudor2005

It was an effort (mostly successful) to stop all Plaintiff's lawsuits. Cutting off access to the courts is un-American. When you're afraid to let a jury decide the merits of a case, you've so abused a democratic system that it's become disfigured.

Originally Posted by Camille

Whoa. Hang on a second there Charles. I disagree with that.

So Charles, back to your original statement. What should I have done to not "abuse the democratic system?" I'm interested to hear this....

Originally Posted by Mazomaniac

He's not saying that you're abusing the system. He's saying that the people who want "tort reform" are.

Damage caps do one thing: they put up an additional barrier between the poor and the jury system. With damage caps in place there's a even bigger incentive to settle for less than the claim is truly worth. That creates an even bigger imbalance between the rich and the poor and is, I agree, anti-democratic.

Cheers,
Mazo.

Camille--

Mazo is right. I am saying that tort reform threw roadblocks in front of legitimate plaintiffs so they don't now get access to the courts.

Tort reform has resulted in (at least in Texas) capping damages at $250,000 (unless you can prove gross negligence, which is pretty hard). Prior to that, attorneys could file lawsuits (similar to yours but with more damages) for millions of dollars if the case justified it. By enacting tort reform, million dollar cases were capped at $250,000. Which did several things.

A lot of plaintiffs' cases were never filed. Insurance companies settled the cases pre-lawsuit for pennies on the potential lawsuit dollar. Plaintiffs' attorneys took fewer cases because their was no money in the case. This is a business remember. Suddenly, cases that juries felt were worth millions were suddenly reduced in value to a couple hundred thousand. What changed? Tort reform. The juries didn't change. And where an attorney (under the old law) might have invested $75,000 in a multi-million dollar case, can't come close to that invest under the new law. If, indeed there is a recovery, it won't be enough to pay the plaintiff and the expenses.

It was a prophylactic way of preventing insurance companies from being liable, and the insurance companies one big. For years, the defense bar promoted tort reform also. Now, a lot of those attorneys are without jobs and their lawfirms have been dissolved because when the plaintiffs stopped filing their legitimate lawsuits, the insurance companies stopped keeping their defense attorneys on retainer.

It your lawsuit was prior to tort reform, you were lucky. My comment about juries was that instead of tort reform (which was a prophylactic measure) the democratic thing to do was to let these cases continue to be tried on their merits, and let juries decide.

[Camille]

Originally Posted by charlestudor2005

Camille--

Mazo is right. I am saying that tort reform threw roadblocks in front of legitimate plaintiffs so they don't now get access to the courts.

Tort reform has resulted in (at least in Texas) capping damages at $250,000 (unless you can prove gross negligence, which is pretty hard). Prior to that, attorneys could file lawsuits (similar to yours but with more damages) for millions of dollars if the case justified it. By enacting tort reform, million dollar cases were capped at $250,000. Which did several things.

A lot of plaintiffs' cases were never filed. Insurance companies settled the cases pre-lawsuit for pennies on the potential lawsuit dollar. Plaintiffs' attorneys took fewer cases because their was no money in the case. This is a business remember. Suddenly, cases that juries felt were worth millions were suddenly reduced in value to a couple hundred thousand. What changed? Tort reform. The juries didn't change. And where an attorney (under the old law) might have invested $75,000 in a multi-million dollar case, can't come close to that invest under the new law. If, indeed there is a recovery, it won't be enough to pay the plaintiff and the expenses.

It was a prophylactic way of preventing insurance companies from being liable, and the insurance companies one big. For years, the defense bar promoted tort reform also. Now, a lot of those attorneys are without jobs and their lawfirms have been dissolved because when the plaintiffs stopped filing their legitimate lawsuits, the insurance companies stopped keeping their defense attorneys on retainer.

It your lawsuit was prior to tort reform, you were lucky. My comment about juries was that instead of tort reform (which was a prophylactic measure) the democratic thing to do was to let these cases continue to be tried on their merits, and let juries decide.

My case was post-cap and the cap in MA is $100k.
Be thankful you live in Texas
To have to go to trial to reach that cap seems a bit harsh to me as it's not that hard to reach $100K after such an accident. One of the things that caps do (as well as limiting the amount claimed) is drive insurance companies to go well below the cap..as they see that as the absolute max now..and they put what they consider the absolute worst case scenerios in that bracket....and with each bad situation they dream up something even worse. Reaching that cap must be damn near impossible. So on the one hand, whilst I'm not for such harsh tort reform, I can see why it happened and why I'm living with it. You have to draw a line somewhere if people are abusing the system and people will always say its been drawn in an unfair place. There are probably loads of people that the $100K doesnt affect...more probably than it does affect..which is why it is where it is in MA....

[Mazomaniac]

Originally Posted by Camille

Just out of curiosity, why do you think there wasn't a damage cap in my claim Mazo?

OK, that was an assumption, but it was based on two things:

1) only a few states have damage caps on auto accident cases, and

2) you're still able to walk.

To hit the non-economic damage cap in a auto case without ending up in a wheelchair takes some doing. I'm not saying that it doesn't happen, but without significant pain and suffering, scarring, or loss of use it's much harder to reach the cap in an accident case than it is in a med malpractice case. Although we've never met, I assume that you're neither grossly disfigured or paralyzed.

Forgive me if I assumed it wrong. I wasn't trying to downplay your accident if it was that serious. It's just that it's extremely rare to hit those caps in an auto case.

Cheers,
Mazo.

[Camille]

Originally Posted by Mazomaniac

OK, that was an assumption, but it was based on two things:

1) only a few states have damage caps on auto accident cases, and

2) you're still able to walk.

To hit the non-economic damage cap in a auto case without ending up in a wheelchair takes some doing. I'm not saying that it doesn't happen, but without significant pain and suffering, scarring, or loss of use it's much harder to reach the cap in an accident case than it is in a med malpractice case. Although we've never met, I assume that you're neither grossly disfigured or paralyzed.

Forgive me if I assumed it wrong. I wasn't trying to downplay your accident if it was that serious. It's just that it's extremely rare to hit those caps in an auto case.

Cheers,
Mazo.

Don't apologize...it was just a curious question
With any cap, there will ALWAYS be outliers and those are the folks that suffer. Outliers are just that though...far and few between. What you gonna do?

[Camille]

Originally Posted by Mazomaniac

significant pain and suffering, scarring, or loss of use
Cheers,
Mazo.

That too!
It's all good though Mazo in the grand scheme of things.
I can walk, I can talk (no comment!) I can see and loads of other things.
I'm thankful for that EVERY day!!
I have a sister that works in prosthetics dividing her time between Ethiopia and England.
Nothing like going to see her at work for a reminder of what is relative and what's not..
C xxxxxxxxxx

[Texas Contrarian]

Originally Posted by charlestudor2005

You might ask the members of the Defense Bar who have had their incomes slashed and law firms decimated since tort reform. I'm sure they think tort reform was much more than an effort to control frivolous lawsuits. It was an effort (mostly successful) to stop all Plaintiff's lawsuits. Cutting off access to the courts is un-American. When you're afraid to let a jury decide the merits of a case, you've so abused a democratic system that it's become disfigured.

I don't think anyone is talking about "cutting off" access to the courts. If there's been a big increase in the number of genuinely wronged parties denied access to the system, I missed the story. It's just that we all suffer if the courts are clogged with suits that are little more than shakedown attempts. And isn't a reduction in fees charged by defense lawyers a manifestly good thing? Every dollar needed to defend a lawsuit is obviously a dollar that could have been put to more productive use.

Originally Posted by Mazomaniac

As the video pointed out, lawyers are in business. They have to take risks in order to prosecute a contingency case. If, as big businesses love to claim, they constantly made poor business decisions by taking huge risks on cases with no merit they would soon be out of business.

What the right loves to forget is that, if they're right about frivolous lawsuits, the market forces they so love to rely on would put the bad lawyers out of business long before regulation would.

How can market forces operate properly if you're participating in what essentially amounts to a rigged game?

My primary residence is in Dallas County, Texas. As I pointed out in that other recent thread, it isn't too hard for plaintiffs' attorneys to get rid of most prospective jurors with significantly above average levels of income and educational attainment. We've become such an entitlement-minded society that it may not be too difficult for a smooth-talking lawyer to convince a number of folks they need to "send a message" to the greedy bastards who wronged their sympathetic-looking client, no matter the facts of the case. A lot of things that wouldn't fly very well in Llano or Gillespie counties (Texas Hill Country) succeed nicely if you can get them before a jury of malcontents in any of our inner cities. Some of these people think the "rich" and big companies ought to pay, no matter the facts of the case, and notwithstanding the obvious fact that driving up insurance company settlements imposes costs on all of us.

Somehow I think we've strayed a little too far from the concept of being tried by the "jury of your peers" envisioned by our founders

[Mazomaniac]

Originally Posted by Camille

My case was post-cap and the cap in MA is $100k.

Whoa whoa whoa . . .

I think we're talking about two different things here.

I'm not an expert in Mass law but I'm pretty sure they only cap non-economic damages in med malpractice cases. Is there really a $100K on non-economic loss there? I'm shocked if they put that into place. It would be the strictest in the country by far.

I'm not saying you're wrong. I'm just floored by it if you're right. It means that the tort reform loonies have really gotten out of hand in Boston.

I think that we must be talking about two different things here. Are you, perhaps, talking about the limits on the insurance policy?

Cheers,
Mazo.

[charlestudor2005]

My primary residence is in Dallas County, Texas. As I pointed out in that other recent thread, it isn't too hard for plaintiffs' attorneys to get rid of most prospective jurors with significantly above average levels of income and educational attainment. We've become such an entitlement-minded society that it may not be too difficult for a smooth-talking lawyer to convince a number of folks they need to "send a message" to the greedy bastards who wronged their sympathetic-looking client, no matter the facts of the case.

Back when I was reading the Dallas County trial reports, Dallas was definitely considered a defense venue. Lots of dismissals and low verdicts. I heard it only got worse.

But your example about the jury pool is only anecdotal in nature. You really didn't transpose that into actual verdicts that proved your assumption.

[Mazomaniac]

Originally Posted by CaptainMidnight

If there's been a big increase in the number of genuinely wronged parties denied access to the system, I missed the story.

And exactly how do you know if someone has been genuinely wronged until they get their day in court? Or should we always just believe the doctor or the big corporation when they say they were totally innocent and automatically throw out the suit based solely on their word?

And if you're so concerned about people who are genuinely wronged then why are trying to cut off their damage awards too? The caps affect everyone, remember? How does capping the damages of somebody with a legitimate claim address your goal in this case?

It's just that we all suffer if the courts are clogged with suits that are little more than shakedown attempts.

I absolutely agree. And that's why I advocate punishing attorneys for frivolous suits, not clients. Putting a cap on damages hurts both "genuine" and frivolous plaintiffs. Putting the hurt on lawyers for filing claims they know are bad is the solution.

Amazingly enough, we already do that. Attorneys that file frivolous actions can be sanctioned by motion from the defense in every single courtroom in this country. Also amazing though, is that very few such motions actually get filed in all those "frivolous" cases. Perhaps that's because the great majority of cases actually have merit?

Somehow I think we've strayed a little too far from the concept of being tried by the "jury of your peers" envisioned by our founders

Yes, the founders absolutely intended that all juries be made up of white male land-owners who would protect the economic interests of big companies. Fortunately we moved away from that standard a long time ago and now we let everybody serve because everyone except you recognizes that poor people and minorities are actually both human beings and American citizens.

Sorry if the little people of the world are getting in the way of your profit machine but hey, shit happens.

What I really find hilarious is your solution to the "rigged game" is to rig it even more. Brilliant!

Whatever,
Mazo.

[Texas Contrarian]

Originally Posted by Mazomaniac

Yes, the founders absolutely intended that all juries be made up of white male land-owners who would protect the economic interests of big companies. Fortunately we moved away from that standard a long time ago and now we let everybody serve because everyone except you recognizes that poor people and minorities are actually both human beings and American citizens.

Sorry if the little people of the world are getting in the way of your profit machine but hey, shit happens.

What I really find hilarious is your solution to the "rigged game" is to rig it even more. Brilliant!

Whatever,
Mazo.

Oh, puhleeeeze!

I think you know damn well how dysfunctional our society has become. An out-of-control entitlement culture is about to steamroller our entire economy. Politicians have made promises we can't possibly afford to keep. Wealth-envy sentiment resulting in ridiculous jury decisions is just another symptom of a broken culture.

Of course it can never happen, but panels of professional jurors could put a stop to all this crap.