Call Obama's Bluff on Tort Reform
Obama’s supposedly “centrist” commitment in the SOTU to “rein in frivolous lawsuits” is pure bluff, and the GOP should call his bluff immediately.
A frivolous lawsuit is one that has absolutely no basis in law or fact. Suing a dry cleaner for $65 million for losing a pair of pants -- that's frivolous. There’s nothing remarkable about limiting frivolous lawsuits. As the Washington Examiner points out, even the trial lawyer lap dogs Kerry/Edwards promised to reduce “frivolous lawsuits.” A lawsuit can be weak without being frivolous. And even a comparatively weak lawsuit can be used to shakedown a deep pocket defendant for millions, due to the risk of sky-high damages (pain and suffering and “punitives”).
To deter the shakedown effect you need: a cap on non-economic damages and a system of “loser pays.” The GOP should bring these reforms to the floor immediately and allow the President to put his hypocrisy on full display.
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Jan '11
Re: Call Obama's Bluff on Tort Reform
Hear, hear! Amen.
Dec '10
Re: Call Obama's Bluff on Tort Reform
From your mouth to Boehner's ears.
Jun '10
Re: Call Obama's Bluff on Tort Reform
Yes, some type of loser pays system is absolutley needed. I can't tell you how many times I've been asked "Are you going to sue?" over the most minor, everyday-life inconveniences. And people today are afraid to accept responsibility when they are wrong, as a lawsuit may result.
Oct '10
Re: Call Obama's Bluff on Tort Reform
Yes, write your congressman and voice your support for "Loser Pays" legislation, which also speaks to genuine health care reform.
Jun '10
Re: Call Obama's Bluff on Tort Reform
Another component of tort reform should be to leave the award of damages entirely to the presiding judge's discretion. Currently in the U.S., if I'm not mistaken, the matter of the amount of the award is left to a jury to decide. The problem with juries is that they can be swayed emotionally, judges are less prone to this sort of suasion. The reason that damage awards are "manageable" under Canadian tort law is that judges decide the amounts. Juries when empanelled decide guilt, and nothing else.
Re: Call Obama's Bluff on Tort Reform
Bunk on "loser pays." Many lawsuits are brought in absolute good faith with legitimate questions to be answered. The litigant doesn't know, shouldn't and couldn't know that he is the loser until the jury says so (and 10 different juries will give 10 different answers).
Accept "loser pays" and watch fraudulent practices, particularly by insurance companies, skyrocket.
And double bunk on taking away my Constitutional right to a jury.
Edited on Jan 26, 2011 at 12:21pmJul '10
Re: Call Obama's Bluff on Tort Reform
The notion of judges as objective deciders of awards and such depends heavily to my mind to limited exposure to judges in an informal setting. Judges are subject to class and ethnic biases too. With a jury, direction and discussion and the consensus requirement can help mitigate against.
Outrageous jury awards can and do get nicked on appeal all the time. (As always, the lawyers always do well.)
And I am with Tommy on loser pays. I like having the arrow in the quiver when a judge feels that Big Money has been harassing John Q. Public, but as a routine matter it incentivizes mad spending on legal services in the belief the cost for those services will fall to the opposition.
Edited on Jan 26, 2011 at 1:26pmRe: Call Obama's Bluff on Tort Reform
So disappointed there isn't more interest in this thread. I was looking forward to a good row.
No one took my bait.
Re: Call Obama's Bluff on Tort Reform
How's this for frivolous lawsuit: Kucinich sues House cafeteria over an olive pit in his wrap
Would love your perspective, Tommy.
May '10
Re: Call Obama's Bluff on Tort Reform
I don't know, Tommy. Frivolous lawsuits get all the airtime, but the the civil award system is pretty important, and a loser pays system will be a big deterrent for the more risk averse (i.e., shallower pocketed) party. There's always a risk that even the most righteous case will lose, and if that result would mean bankruptcy for one party, they're unlikely to pursue anything. So you won't get much argument from me, at least, on that.
On the other hand, I'd love to see caps on awards, limits on joint and several liability, etc.
Nov '10
Re: Call Obama's Bluff on Tort Reform
I am with Mr. de Sano on the right to trial by jury. I don't want to lose it. I have tried lots of cases to juries of twelve, juries of six (in federal court, reduced by a simplistic argument based on faulty "research"), and juries of one (a judge sitting as trier of the facts). I want the traditional twelve any time and the best cross section of the commmunity that I can find.
The present problem has resulted from
(1) trial judges refusing or being restricted from applying rules of reason to jury awards, so that the truly outrageous ones can be reduced on an objective scale;
(2) lax standards of proof for "soft" damages such as "pain and suffering", emotional distress, and the like;
(3) excessive and essentially unregulated scope for "discovery" of the relevant facts; and,
(4) the failure of judges to demand careful pleading and clear and soundly based claims. Logic is absent in much of what passes for pleading these days.
Wide-ranging "discovery" permitted by the Federal Rules of Civil Procedure and most of the State rule which ape them greatly magnifies the cost and delay of litigation in its present state.
Oct '10
Re: Call Obama's Bluff on Tort Reform
I hope Instapundit picks this one up.
Re: Call Obama's Bluff on Tort Reform
Tommy, sorry for the delay. In this post I'm not advocating abolition of the civil jury, (although I still support that).
Here, I say the House should move immediately to cap non-economic damages and institute loser pays. Sure, loser pays will deter some lawsuits that might have merit. But society has to allocate the risk of unfounded (though not "frivolous") lawsuits. In the current US system, with contingent fees and no loser pays, the risk is entirely on the deep-pocket target (ie, productive businesses). The plaintiff bears no risk. Loser pays gets us to a better allocation of risk.
Re: Call Obama's Bluff on Tort Reform
Adam maybe you and I can debate it on a podcast someday. Would be fun.
Re: Call Obama's Bluff on Tort Reform
I can arrange that!
Nov '10
Re: Call Obama's Bluff on Tort Reform
Adam Freedman: Tommy, sorry for the delay. In this post I'm not advocating abolition of the civil jury, (although I still support that).
Here, I say the House should move immediately to cap non-economic damages and institute loser pays. Sure, loser pays will deter some lawsuits that might have merit. But society has to allocate the risk of unfounded (though not "frivolous") lawsuits. In the current US system, with contingent fees and no loser pays, the risk is entirely on the deep-pocket target (ie, productive businesses). The plaintiff bears no risk. Loser pays gets us to a better allocation of risk. · Jan 27 at 10:23am
Whom would you make the trier of fact? The judges? That, based upon my experience in federal and State courts, makes me distinctly uncomfortable. And, if the judges are going to do the fact finding, will they be elected or selected some other way?
In many instances, the parties are in vastly different financial positions. How can a losing individual pay the costs of defense incurred by a major bank or by a doctor's insurance company? Wouldn't the best plaintiff under a loser pays system be a near bankrupt?