Posted 3 years, 7 months ago around lunchtime by abogado
The rumors are true. My account wasn’t really “lost” and my hard drive didn’t “crash”. I have to admit it: I’ve actually been a paid operative for the Bush administration posting on liberal blogs under the pseudonym “ImNotaRepubISwear”. Yes, it is slimy, but they pay well and it’s probably what I would have been doing anyway.
It turns out The Onion and The Daily Show have been ahead of their time – fake news is the wave of the future.
On a more serious note: Tort Reform. I’m not really sure how “on the radar” this issue has been but even being surrounded by law students I haven’t heard it brought up often. In truth, the “Class Action Fairness Act” isn’t all that pernicious for a number of reasons , but if it leads to further reforms in medical malpractice and the like it could be a sign of impending disaster.
The tort system is designed to check and regulate actions that cause harm to people. It has been highly refined over the centuries to work in the overall American system. It has problems, many of them, but I think they are much less significant than the likely alternatives: increased government regulation of private activities through executive agencies or less overall enforcement of our environmental, safety and health standards. Combine Bush’s goal of tort reform with his stripping of regulatory agency power and you have a recipe for rampant corporate crime against people who have neither the resources or know-how to defend themselves.
If the purpose of the CAFA is to allow corporate defendants in class-actions suits to avoid lawsuits by exploiting technical loopholes procedural differences in the federal court system it will probably fail. I think judges will do what they can to allow class-action plaintiffs to bring a suit on the merits in line with the purpose of the Federal Rules of Civil Procedure. But, if that is indeed the purpose then it is indicative of the motives of those behind the tort reform movement to shield wrong-doing companies from answering questions before a court. Keeping in mind that judges (state and federal) already have the discretion and the power to throw out any cases that are merit-less and to sanction, monetarily or otherwise, lawyers and law firms (and even plaintiffs) that bring these suits, it seems that the purpose is to circumvent the system altogether, and that is exceedingly dangerous.
Bush wants to take the decision-making process out of the hands of the average person – the jury – and remove it from the system we have in place to protect our health, environment and safety – the courts. Ironically, it is his “confidence” in the same average person that leads him to conclude he “trusts” us with our retirement money. Clearly, the justification for these proposals are in conflict, but the parties that benefit are largely the same. I’m just sayin.
thank you abogado. thank you, thank you, thank you.
Yeah. I have been hearing the lawyers over here bitch about this……specifically the med mal and personal injury lawyers. I need to read up on this.
From what I understand, Bush isn’t trying to take away rights……..it appears as if he is trying to push for “reasonable” monetary judgements, no?
I will have to do more research on this. Again, in this market…..the lawyers who are doing the bitching are the personal injury types and so forth, you know?
TheOrator.com looks like a great place for pleasure reading. Good to see that Hunter S. Thompson’s suicide didn’t inspire you to do anything stupid. Shame we lost Moreno though.
Anyway, somehow they managed to pass this CAFA thing without asking me, so thanks for bringing it to my attention. I’m pretty sure conservatives will argue that tort reform places more responsibility on the individual. And that’s a really good point since maybe the paper mill is dumping chemicals in the local river, but you’re the one drinking the water aren’t you dummy?
Would be nice if someone sent some tort down here. Anyone have any info on class action law suits in Mexico? Do they exist?
I completely agree. The legal system is one that works efficiently and ethically largely on its own. I am less trusting of politicians attempting tort reform than tort lawyers and judges attempting tort reform. It is also ironic that in arguing against “frivolous” medical malpractice suits, presumably in some capacity based on the fact that doctors know what they are doing and should/can be trusted, the professional occupation of the lawyer is put into question and they are not afforded the same ‘profession-based trust’ and autonomy as the medical profession.
The tort liability system is not perfect, but that is a flaw inherent in the attempt to define a tort, especially an actionable one. Must there be physical contact? Must there be no contact necessary but some physical injury (for example, one brought on by emotional distress)? How do you monetarily quantify non-physical damages? Many of these questions remain either unanswered (at least not definitively) or disagreed upon. These are not easy questions, and they are not questions that can (or will) be put to rest by legislative “tort reform”. They must be worked through by the courts.
Finally, people seem to forget that the judiciary is the third branch of the government, and we have a system of checks and balances in place for the express purpose of making sure that one branch of government doesn’t overstep its boundaries. Is the field of what constitutes a properly actionable tort in the sphere of the judiciary? Is it the place of the legislature or the executive to tell the courts how to rule? Perhaps, perhaps not. I’m not sure, but considering the fact that the judiciary is looked at to interpret the law, I’m willing to trust them to interpret tort law.
Although, I WILL be a lawyer in a few years. So maybe I’m biased.
Hmmmm. I asked my lawyer and other lawyers what their views are on tort reform.
Here is my conclusion. It is good to eliminate frivolous lawsuits…….ones like these:
http://www.atra.org/show/7859
http://www.atra.org/show/7774
http://www.atra.org/show/7837
However, how can we control frivolous lawsuits?
I agree to a point that we should not allow the class action lawsuits to be filed via the Supreme Court. I think this is somewhat of a bad idea because less lawyers are going to avoid taking these types of cases. The Supreme Court only takes…….what? About 87 cases per year? Or something like that?
I see both arguments. I see how we should eliminate frivolous lawsuits, yet I see how requiring the Supreme Court to hear the ‘class action lawsuits’ can be a bad idea. I think class action lawsuits should be heard at the state level.
Good topic.
DD - thanks for your interest. Here are a few comments:
Quite clearly, those lawsuits (compiled by the “American Tort Reform Association”) are ridiculous. More than likely if they make it to court they will be thrown out very early or at the latest on a motion for summary judgment but likely in an earlier procedural motion by the defendant. This will cost money as all court proceedings do. The judge may have the option to sanction the lawyer who brought the case or to make the frivolous plaintiff pay the defendant’s attorney fees. At any rate, how would you propose stopping these cases any earlier? Do we just block access to the courts to some people? Who would decide this and on what grounds? Essentially, we accept this as an inherent flaw in a system that is designed to grant access to each citizen.
My point is, the courts have developed a system to deal with these cases as efficiently and fairly as possible. We read about these cases and we are angered because they are obviously silly, but they are a tiny minority of cases that are brought and the cost amounts to an even smaller fraction of the total costs of the system. My guess is that the ATRA doesn’t keep track of the countless frivolous appeals filed by defendants or the bad faith practices on the part of large corporate defendants in the discovery process whereby they “kitchen sink” plaintiffs with information to hide wrongdoing, or use various other “frivolous” procedural tactics to esacpe liability. It cuts both ways.
Just to clarify, the class actions covered by the act would be brought in Federal Court, which does not mean the Supreme Court.
Hi Abogado:
Again I want to thank you for bringing this topic up. You forced me to look into this.
“More than likely if they make it to court, they will be thrown out very early or at the latest on a motion for summary judgment but likely in an earlier procedural motion by the defendant.” –Abogado
It is optimistic to believe that these cases are going to get thrown out early. It is a very high threshold to win an “early” 12 (b) (6) Motion. More than likely the case will proceed through discovery and then be thrown out at the summary judgement level. A summary judgement occurs following discovery which includes depositions, interrogatories, request for admissions, request for production of documents and things, etc. etc., etc.
Prior to motion for summary judgement. The defense can file a motion to dismiss prior to filing an answer for a number of reasons. The most common is 12 (b) (6) which is a motion to dismiss for failure to state a claim upon which relief can be granted.
“The judge may have the option of sanctioning the lawyer who brought the case or to make the frivolous plaintiff pay the defendant’s attorney fees.” – Abogado
It is “rare” to believe that a court will sanction an attorney for a rule 11 violation with a good faith belief in the legitimacy of the claim. All the attorney has to do is articulate a basis for his belief that the law is on his client’s side or that the law “should” be on his client’s side.
If you preclude the filing of frivolous lawsuits in some manner………this saves the defendants from needing to hire an attorney and spend a lot of money defending those types of merit less lawsuits.
Attorneys and law students (by extension)….inherently do not want to see that happen, because that means less work coming to them.
That is why the trial lawyers’ lobbyists do not wish to see tort reform, because let’s face it, someone who comes in with a lawsuit may have merit or may not have merit.
The plaintiff’s attorney will file the suit in hopes of recovering at a minimum the nuisance value of the lawsuit. So, when you have a “deep pocket” defendant, they might pay out a sum of money to settle a meritless suit rather than spend more money hiring an attorney or spending more money in defending the lawsuit or going through trial or the summary judgement process. The point being……. the plaintiff’s attorney hopes to recover the nuisance value at a minimum and that’s the incentive for filing those types of cases. That amount of recovery is more money to the attorneys than they would have had…….had they not have filed.
Somebody can go into a law office and claim they were traumatized by watching a rat eaten on NBC, the attorney will say, “I feel your pain,” and file a lawsuit. Figuring there will be some settlement.
Somebody can legitimately have an injury or a claim, but must there be a disclaimer upon every activity in life?
Do we just block access to the courts to some people?–Abogado
No. You increase the level of scrutiny.
You get a “kook” in small claims who files many, many frivolous lawsuits,. Many small claims jurisdictions will cap the number of small claims cases that can be filed in a given year. Any cases to be filed over that amount must be filed in district or regular court.
This is good to take care of the “kooks,” but is not good for the legitimate business man or landlord who needs access to simplified court proceedings to take care of legitimate business needs.
It’s a double-edged sword.
“…but they are a tiny minority of cases that are brought and the cost amounts to an even smaller fraction of the total costs of the system.” –Abogado
We don’t know what the percentage is of frivolous lawsuits……many cases are settled early for nuisance value, but that is still a cost to the defendants and regardless of whether it is a high number or not, each defendant who has to defend a frivolous lawsuit must bare the costs of doing so as to that defendant……this is a big issue.
This has an effect on the economy, and corporations raise their prices to counter the legal expense….the nuisance suit expenses.
Your argument is that this is a small problem. My suggestion is that we do not know if it is a big or small problem, but in any event, it is still a problem and one which ought to be dealt with.
So how do we ensure that a case is going to get the proper scrutiny….and fair scrutiny? Should there be some sort of alternative dispute resolution perhaps?
Bush eliminated……….. in essence forum-shopping. Restricting same to federal courts and in doing so, raised the criteria needed to satisfy the class action requirements. The hope is to eliminate some of these frivolous lawsuits.
Bush has not taken any rights…..citizens still have access to the courts…………the standards were raised.
“Just to clarify, the class actions covered by the act would be brought in Federal Court, which does not mean the Supreme Court.” — Abogado
You are right, my bad.
I think Bush ought to look at mediation avenues.
You guys are learning me. Bobbo you say:
I think that’s exactly the reasoning most pro-tort-reform people give: that the legislature needs to step in to create a check and balance against lawyers and judges whose careers are dependent on people suing people.
This is a tangent, but it’s like how the Border Patrol Union is always against proposals which would actually stem the flow of illegal immigrants because their jobs are dependent on the people they are trying to keep out. Or even how the US military is always against peace because peace is a threat to their funding.
Remember that dude on the back of every San Diego bus with the ridiculous smile asking if you’ve been hurt at work? Or while walking down the sidewalk? Or while combing your hair? That guy provides absolutely no service to society. But how do you keep shmucks like him out of the courthouse while ensuring that people who really are injured at work because of negligent management have access to all that they are entitled to and more importantly know what they are entitled to?
I’m playing devil’s advocate here, but if you’re trying to convince people that tort reform is a bad idea, saying that it should be left up to wealthy lawyers who could potentially (and sometimes do) benefit from a corrupt system, is not the way to do it.
The thing is, this isn’t about frivolous lawsuits. This is about class actions that have a lot of merit and are going to win very large settlements. The whole idea is that they think Federal courts are less sympathetic to plaintiffs and will not give out (as) massive settlements when, for example, people’s hearts explode. But I guess I was the one who brought up future reform, so touche.
Bobbo - I wouldn’t go your route because it is entirely within the constitutional limits of Congress to limit a court’s jurisdiction, so the whole separation of powers question is tough, unless you are making it on policy grounds, in which case I would largely agree with Oso. Why should tort lawyers make up tort rules? But, Oso I don’t see how judge’s careers really depend on the flow of frivolous cases. If you cut their caseload in half (which ending ALL frivolous [and non-frivolous for that matter] tort cases wouldn’t nearly do) they would still have plenty of job security and be plenty busy. On the other hand, many state judges are elected and may feel pressured to allow large settlements to get them reelected. But then, that doesn’t make sense based on the premise of toer reformers: that people don’t want large settlements. This premise would imply that state judges (who stand for reelection) would be more likely rather than less, to puch for lower awards to repond the the so-called will of the people. I think there is something else going on here.
At any rate, I think the whole thing is ridiculously overblown. You read about the cases that DD linked to and you think “my god, I’m paying for this!” and suddenly ever lawyer is a villian reaching into your pocket and stealing your paycheck. The statistics, and there are many more that I will find when I have time, simply do not support the drastic measures that “tort reform” proponents advocate. They use rhetorical questions with no support and ridiculous scare tactics to create a false perception among the public largely based on this paranoic fear of lawyers. I will find more specific statistics against all this nonsense (I’ve read many of them) in the near future because I think there is a problem and it needs a response, but it is crucial that people understand the actual extent of the problem so we don’t throw the baby out with the bathwater - the consequences of which would be the loss of one of the most important tools in American life. period.
Ok….
I looked at the ’statistics’ that you provided and I don’t see a credible source within the article that is cited.
Also, Richard Turbin is a Honolulu attorney and chairman-elect of the Tort and Insurance Section of the American Bar Association, with 35,000 members the largest organization of insurance and personal injury lawyers in the world. The information he provides is old….and it appears that he gave some supposed facts from the 80’s to the early 90’s.
I will wait to get some more specific statistics from you. I think that might help me out a lil’ bit. It would be nice to have statistics in regards to the blue and red states’ judgements, but I don’t know if that information is out there.. I think that part of the tort reform that Bush implemented, in essence, eliminated forum shopping.
Again, thanks……..I will be watching for more statistical data from you.
“Remember that dude on the back of every San Diego bus with the ridiculous smile asking if you’ve been hurt at work?”
¡¡ACCIDENTES!! 222-2222
Dude on the back of every SD bus?
Yeah, Chris totally nailed it. If anyone in SD would send me a picture of that ad, I’d be eternally grateful.
DD - you’re totally right about that article. I was in a hurry and just skimmed it as it was the first one I found. I will provide you more “objective” academic statistics from my casebook and the law review articles and studies they refer to and I will try to provide a better articulated critique of the statistics cited by the ATRA. Many of these studies are not “publicly” (in that they can’t just be googled) available to my knowledge as you need a subscription to Lexis or Westlaw. Since you are interested I will do a little legal research and see what I can find.
Ok. Cool…..I didn’t even think about that. I have access Lexis and Westlaw. Great!
I can’t wait to see your legal research. This is fun and I can’t wait.
Testing…..1 - 2 - 3. Subscribing to comments.
Well, I guess there is no need to repeat what has already been researched more thoroughly than I could ever hope to do, so instead here are some excerpts of articles. I have edited this down a lot (believe it or not), but the citation is there for anyone with access to lexis or westlaw.
First up, an article on caps on non-economic medical malpractice recovery:
I’ve added the html in the footnotes. Some of the links provided are broken..
53 EMORYLJ 1263
Emory Law Journal
THE HIDDEN VICTIMS OF TORT REFORM: WOMEN, CHILDREN, AND THE ELDERLY
Lucinda M. Finley
more to come.
Ok. I will mull this over.
I am doing some research on Lexis so it might take me a bit to produce something in response to what you provided. I want to think about this because I would eventually like to form some sort of conclusion on this tort reform stuff.
I’m a bit on the fence on this issue……and I can see both sides of the argument.
Interesting read from Lucinda. That was good stuff, thanks.
I am not William Frist’s biggest fan at the current time. In fact, ironically enough, I received a letter from him today. I made a complaint to his office in mid-November and just received a response this afternoon.
Now, back to Lucinda…..Abogado, here in Kansas I know a few med mal and personal injury lawyers. (I participate on the Lawyer’s League Softball team, and I get to hear lots of good stuff :wink:), hee hee, anyhow, many of these personal injury and med mal lawyers attempt to issue letters and demands before even filing a complaint in district court. Many doctors and businesses will settle a complaint before the matter is taken to court in hopes of avoiding public embarrassment. If this happens here, how many times does it happen else where? You know?
Why doesn’t Lucinda address that issue? The issue of how complaints get settled prior to the formal court proceedings. Many times, a confidentiality agreement is signed by both parties where they both wish to keep the complaint private before a final settlement is reached and before a case is even filed. Especially with doctors –doctors need to maintain a reputable practice in order to maintain trust when caring for their clients.
These days, consumers are becoming increasingly informed, and smart consumers do their research on surgical doctors prior to allowing them to perform surgery. Doctors know this. It is imperative that they settle as many cases as they can in order to prevent a lawsuit being filed. The fewer cases that doctors have on record, the better.
Why doesn’t Lucinda address this situation? I think it is possible that the med mal filings decreased due to complaints being settled before reaching the courts. These cases do not get reported, nor do we know or have any statistical data on same. This is a loop hole. This is what makes me uncomfortable and this is why I can see Bush’s concern.
Smart “kooks” know that doctors need a good reputation……how many “kooks” abuse this?
I did a Lexis search on Bush’s concerns in regards to tort reform and this is the concern that he has……..it seems fair, no?
******
Finally….I wanted to know who Bush’s heaviest influence could be. Thanks to you and Lucinda……I think Frist might be W’s heaviest influence. Oddly enough, Bush needs Frist to stop blocking immigration reform. This is what I hate about politics. Too many of the “I will scratch your back if you scratch mine” attitude makes me nauseous. Real integrity can get lost in that — and I believe integrity is and will always be key in everything.
This is just typical political rhetoric that says a grand total of nothing about what the bill (CAFA) actually did. I don’t see at all how it will cut down on frivolous lawsuits since they will still be lawsuits, only they will be moved to federal court. Meanwhile, Bush and Congress are forcing the Federal Courts to cut jobs by reducing their budget. The State courts are arguably more capable of handling these cases than the Federal courts, so is he really worried about “clogging the courts?” Apparently not. From what I can tell, this does nothing to cut “junk lawsuits” either.
In fact the statement right after the part you put in bold is far more telling:
exactly. It’s simply a political “testing of the waters” to see what reaction will be like and to try to build momentum for much more sweeping (and damaging) change in the tort system.
A grand total of nothing? Aw come on, Abogado, that is a little extreme. There is some truth.
Public Papers of the Presidents — April 26, 2004, Monday
Do you not agree that American’s have become somewhat litigious? I’m curious…..have you worked for a law firm or clerked for a legal firm? It’s amazing how litigious our society has become.
I reviewed the News Release you provided…….I supervised/worked for district court and I can tell you that some court administrators are instrumental in the purchasing decisions that they make. Instead of cutting jobs, court administrators can be creative with their budgets.
Also, you would think that good ol’ W would propose a cap on some of these federally appointed ‘for life’ judges. Seriously, some of these judges are old farts and when you couple age with continuous pay increases.
Ugh. Spells disaster and drain.
What are you eluding to here? I wanna know, I wanna know!