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Subject:  Re: t.Retirement won't happen for me Date:  8/18/2006  1:42 PM
Author:  ptheland Number:  53235 of 91104

Most of the cases are decided by jury. Why is no part of the rant directed at juries?

Because jurors are simply following the instructions given them by --- wait for it --- attornies. The plaintiff and defendant are both represented by attornies. The judge is an attorney. They are the ones instructing the jury. If huge pain and suffering awards come out of the jury box, it's because the judge and attornies instructed them that it is OK to do so.

"The truth is that judge's already have the authority”—under "Rule 11"—to throw out a frivolous lawsuit and sanction the attorney before the case even gets started. It's time to fight myths with facts."

OK. But for the judge to sanction an attorney you've got to get it in front of the judge. How many cases are filed, then settled before even getting on a court docket? Yes, they're smaller cases, but they can nickel and dime insurers to death. Or, more correctly, they increase the cost of claims which just get passed on in the form of higher insurance premiums.

And one thing I don't know is how frivilous your suit needs to be before Rule 11 kicks in. I'm sure there is the truly frivilous stuff out there. And those are probably being stopped by fear of Rule 11. But what about the grayer issues - ones that may or may not be frivilous, but probably aren't worth a big settlement? They are probably better described as nuisance suits rather than frivilous.

With the unknown risks of going to trial and getting a huge judgement, an insurer might be happy to settle a case for a few thousands of dollars that actually has a pretty good chance of being ruled in favor of the defendant. But when you toss in a 1% or 2% probability of a multi-million judgement, plus the certain costs of defending the case in court, you end up settling a lot of marginal claims for more than they are probably worth. Finally, toss in a bit of the insurer's duty to defend and the risk of being sued by their insured, and you've got a recipe for exactly the mess we are in.

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