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No. of Recommendations: 35
Anyone see John Stossel's "give me a break" segment on 20/20 Friday night? If not, you missed a pretty good story about how trial lawyers have added so much cost to our system without necessarily deriving any benefits for such.

He singled out John Edwards and that (in part) because of his successful lawsuits against obstetricians, who delivered babies with cerebral palsy, that more C-sections are performed. In fact, almost 26% of babies, versus just 6% before Edwards efforts, of all babies are now delivered via C-section. Edwards made the case that cerebral palsy can be caused by a fragile baby's head passing through the tight spaces in the birth canal, hence the need for a C-section.

C-sections are more costly, of course, for the patient and their insurance companies. Ironically, the doctors also make more money by performing them. The patient, OTOH, not only has a longer recovery period and enhanced (5 times?) risk of other complications due to the procedure, but has a lifelong visible scar.

One may say that this is a small price to pay for the (potentially) better health of the newborn child, but the punchline is that there has been NO reduction in the cerebral palsy rate given the 4 fold increase in C-section deliveries!

Stossel, therefore, accuses Edwards and other trial lawyers of "junk science" and adding unnecessary costs to our healthcare system.

This, itself, is enough to tell. But, the "rest of the story" is that upon the completion of the airing of his segment, and Stossel's standard uttering of his catch phrase "give me a break", Barbara Walters felt compelled to add a disclaimer saying that John's views do not reflect hers, those of the show, or ABC. I always try to catch this segment and I have NEVER seen Ms. Walters do this before. Could it be that it's an election year and the Kerry-Edwards ticket is the one she & ABC want to win? Obviously;-)
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No. of Recommendations: 17
Barbara Walters felt compelled to add a disclaimer saying that John's views do not reflect hers, those of the show, or ABC.

Views? What views? Here are the facts:

- Partly because of a lawsuit brought on some doctors by John Edwards, the rate of C-sections are up.
- Even though the number of C-Sections are up, the rate of cerebral palsy has remained constant which is contrary to the argument Edwards used in his case.
- C-sections cost more which cause insurance rates to go up

A+B+C = truth

Truth - trial lawyers like John Edwards add unnecessary costs to the healthcare system.

There are no views in that segment.

Agent
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No. of Recommendations: 2
This, itself, is enough to tell. But, the "rest of the story" is that upon the completion of the airing of his segment, and Stossel's standard uttering of his catch phrase "give me a break", Barbara Walters felt compelled to add a disclaimer saying that John's views do not reflect hers, those of the show, or ABC. I always try to catch this segment and I have NEVER seen Ms. Walters do this before. Could it be that it's an election year and the Kerry-Edwards ticket is the one she & ABC want to win? Obviously;-)

How fitting?: Perhaps ABC's lawyers directed Ms. Walters to perform the disclaimer.


Duck
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No. of Recommendations: 4
I seem to recall that that's the standard disclaimer that ABC adds to John Stossel's commentaries.

The segment is defined as a commentary. I'm sure ABC, like any news organization, stands by the facts represented in the commentary.

So the "views" only apply to commentary and conclusions. If the facts speak for themselves, they speak for themselves.

I have to tell you, though, that just as Edwards may have been loose with the scientific method, a five-minute segment can't possibly address all of the scientific issues.

My mother has cerebral palsy. Her mother was told she wasn't in labor by the doctors, so she gave birth to my mother on the toilet and my mother's head probably hit the toilet.

Only an idiot would think that natural births cause cerebral palsy, because we all don't have cerebral palsy. But it's clear to the medical community that *something* happens with the birth process that can cause cerebral palsy.

And if that's the only reason for the increase in C-sections, then when the data bears out that's it's not a factor, the number of C-sections will go down, because trial lawyers will no longer be able to use that argument. But I'm sure that's not the only reason for the increase in C-sections.

In many cases, the best method of improving health care is trial and error. I'd be really surprised if Edwards had not lined up experts that had studies to back up his science, in which case it's not "junk." It is not "junk science" to insist on a mathematical proof before changing policy.

You really need a much longer show to address this issue correctly. I'd be interested if Stossel did one of his hour-long specials on this. I've found that his five-minute segments are very lacking in real substance, and if you ask him I'd bet he'd say he prefers his hour-long segments.

As it stands now, what I've heard suggests nothing that is disingenuous about Edwards' behavior.

-JAR
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...Barbara Walters felt compelled to add a disclaimer saying that John's views do not reflect hers, those of the show, or ABC. I always try to catch this segment and I have NEVER seen Ms. Walters do this before. Could it be that it's an election year and the Kerry-Edwards ticket is the one she & ABC want to win? Obviously;-)

Very obviously.

I'd never seen this kind of disclaimer before, and in seeing the segment, it was abundantly clear to me that Walters wasn't just making a standard disclaimer, but was clearly stating that she didn't agree with Stossel.

And Stossel's reaction... well... it spoke volumes as well.

Regards,

Eldrehad

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Perhaps ABC's lawyers directed Ms. Walters to perform the disclaimer.

You mean the lawyers didn't demand the same for each and every one of Stossel's 'Give me a break' segments to date, but suddenly decided that one was necessary for this one? Please. If Walters has made similar statements subsequent to all other segments, then I'm willing to stand corrected - but I can't recall any.

Furthermore, when the object of criticism is a prominent political figure, any lawyer worth his salt would know that the network can't be sued.

Your supposition here defies all logic.

Regards,

Eldrehad

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You mean the lawyers didn't demand the same for each and every one of Stossel's 'Give me a break' segments to date, but suddenly decided that one was necessary for this one? Please. If Walters has made similar statements subsequent to all other segments, then I'm willing to stand corrected - but I can't recall any.
Furthermore, when the object of criticism is a prominent political figure, any lawyer worth his salt would know that the network can't be sued.
Your supposition here defies all logic.


Actually, I remember several times when Hugh Downs made the disclaimers years ago, and not in response to a Stossel segment, but to other reports of 20/20 as well. They weren't consistent, either, and the report involved in each instance was usually something having to do with either religion and/or politics. It's been years since I've watched 20/20 consistently, but the most recent one where Downs made the disclaimer was in reference to an abortion-clinic bombing.

So I'll admit I have not sat down and watched every segment with Ba-ba Wa-wa's follow-up responses, nor all of Hugh Down's, either. But I have heard them make disclaimers before.

You are corrected.


Duck
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- Partly because of a lawsuit brought on some doctors by John Edwards, the rate of C-sections are up.

How do we know this?

Hmm, anyone know any doctors suggesting C-sections to uncomplicated deliveries simply so they can avoid the risk of a lawsuit in the case of a problem vaginal delivery?

Does anyone know how many doctors get sued as the result of a complication from a C-section (of which there are many, including maternal death due to bleeding, infection, etc)? I do personally know a doctor who DID get sued when an infection after a C-section caused the woman to be sterile. So why aren't doctors going to choose vaginal deliveries instead of C-sections so they don't get sued for a complication as a result of the C-section?

FWIW, I am a future child neurologist (as in, I will be treating children with CP) and I fully support John Edwards, while admitting that there needs to be some tort reform and admitting that there are frivolous lawsuits and admitting that juries can sometimes side against the "facts" due to the human desire to "correct" a wrong, even when no one did anything "wrong".

But laywers and the courts still play a vital role in ensuring that people/corporations who ARE negligent get punished. There is no perfect system. But as a future physician who's income will be derived from treating patients, I am not happy with the direction health care is going, and both doctors AND patients will be worse off if we continue down the road advocated by the Bush administration.
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Not a Libertarian folks, just doing the usual drive-by on a post that made the Best Of.

Moving beyond the particular scenario related by Stossel regarding the cerebral palsey situation, i must confess some apprehension at the rampant "anti-trial lawyer" mania that has gripped much of America in recent years.

I wonder how intense the mania has become.

Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.

What is the best proposed solution for the perceived harm that these trial lawyers are inflicting on America? Serious question.

Thanks for your thoughts,

Bon
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What is the best proposed solution for the perceived harm that these trial lawyers are inflicting on America?

I almost hate to say it, but I think that juries are unfortunately ill eqipped to make decisions in all too many of these cases.

Regards,

Eldrehad
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Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.

Of course not. However, John Edwards and his ilk would lead you to believe that a negligent doctor was behind every single infant born with cerebral palsy. Or that it is the Altria Group's fault that my chain-smoking Aunt has come down with terminal lung cancer.
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Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.


Bon,

Take a look at this link:

http://abcnews.go.com/sections/2020/GiveMeABreak/GMAB_edwards_040723-2.html

No-one can call ABC a bastion of conservative thought, but they have reported in this link that 76% of obstetricians have been sued.

I would submit that the pendulum has swung too far in the opposite direction. Given that 76% of OBs are getting sued... I find it much easier to believe that people have their noses too much in the trough these days, than that three-quarters of all OBs are negligent.
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However, John Edwards and his ilk would lead you to believe that a negligent doctor was behind every single infant born with cerebral palsy.

I'm quite sure that's painting with far too broad a brush. While i've never spoken with Mr. Edwards personally on the matter, i feel very confident when i assure you that he does not believe a negligent doctor was behind "every single infant born with cerebral palsy."

The expert opinions he used to support his cases on this may be proven incorrect as scientific knowledge expands, but that hardly proves that his sole motivator was his own personal gain or that he knowingly went after doctors who bore no responsibility for their patients' afflictions.

Or that it is the Altria Group's fault that my chain-smoking Aunt has come down with terminal lung cancer.

I fully subscribe to the belief that we as human beings must take responsibility for our own actions. If i know that cigarettes greatly increase my risk of contracting cancer and/or heart disease, yet i still choose to begin smoking, then at that point i have assumed the risk and i can't very well blame the cigarette manufacturers for providing me with the means to kill myself. If i decide to jump off a bridge to commit suicide, my family has no right to sue the company that built the bridge.

But none of that means that cigarette companies have been entirely blameless throughout modern history. If they had clear evidence about the dangers of smoking before anyone else knew of it and hid it from the public, then they are indeed culpable and should be punished in some, way, shape, or form.

IOW, i don't believe a company should be made to pay out millions of dollars to people who use its product knowing full well that it is somehow dangerous to their wellbeing. But if the company does something specifically wrong and/or deceptive, beyond merely manufacturing a known dangerous product, then some punishment is in order.

And none of this discussion answers the question i asked. What is the solution? It's all fun and popular to bash trial lawyers for getting multimillion dollar verdicts against doctors who later prove to be innocent or against cigarette manufacturers, but it hardly offers a constructive answer to the problem we are faced with. Namely, how do we protect the rights of the consumer against multinational corporations--who would sooner kill people and hide the body than admit wrongdoing--without allowing abuses of the tort system that simply work to raise prices for the rest of us, the ones who ultimately end up paying for these huge verdicts?

Bon
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I would submit that the pendulum has swung too far in the opposite direction. Given that 76% of OBs are getting sued... I find it much easier to believe that people have their noses too much in the trough these days, than that three-quarters of all OBs are negligent.

I agree.

Now, what is the solution?
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What is the best proposed solution for the perceived harm that these trial lawyers are inflicting on America? Serious question.

The best answer that I have heard is loser pays court costs.


hewler, looking for a link
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"FWIW, I am a future child neurologist (as in, I will be treating children with CP) and I fully support John Edwards, while admitting that there needs to be some tort reform and admitting that there are frivolous lawsuits and admitting that juries can sometimes side against the "facts" due to the human desire to "correct" a wrong, even when no one did anything "wrong"."

No offense foolferlove,
But I was just wondering if you had to pay your first malpractice premimum yet?
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The best answer that I have heard is loser pays court costs.

I saw Stossel suggest that when he was interviewed on Fox News. I just happened upon it as i was flipping channels.

It's not an entirely horrible suggestion, but it certainly runs the high risk of deterring people with legitmate cases from ever pursuing a cause of action because they fear losing and having to pay court costs they can't afford. Just the cost to defend one of these cases could run into the hundreds of thousands if not millions.

And juries are notoriously unpredictable. Even if you personally are 100% percent confident in the merit of your claim, you'd have to have some serious hutzpa to be willing to risk your entire financial security on the hope that a jury will find in your favor. That's Gambling with a capital G.

There are penalties in the legal system for filing frivolous lawsuits. If it can be conclusively shown that a particular costly lawsuit was indeed frivilous, i'm in favor of making the loser pay. Otherwise, that's playing with fire.

Bon
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Namely, how do we protect the rights of the consumer against multinational corporations--who would sooner kill people and hide the body than admit wrongdoing--without allowing abuses of the tort system that simply work to raise prices for the rest of us, the ones who ultimately end up paying for these huge verdicts?

It's a very simple solution that is already in force in other Western countries with strong consumer protection, such as the UK. It's been proven to work in that people genuinely injured still get their day in court, while those rooting in the trough do not.

The solution is twofold: first and most important, the lawyer takes the case on a contingency and does NOT get paid for his court time if his client loses. In other words, stop him from billing the client for his time at the end of the case if he loses the case and there is no settlement for him to take a cut out of to cover his fees. With this scenario, lawyers are encouraged to only take the cases they truly believe are valid and winnable. (It also protects clients with genuine complaints from being put off the court route - they aren't faced with paying the lawyer fees if the lawyer encourages them to go to court but they then lose.)

And second, the client pays all court costs for the defendant if the client loses and the defendant wins. This would help separate those with a genuine grievance out from those who are giving it a try to see what they can get.

Of course, that'll never be implemented here.

It would mean that the OB being sued could finally decide to go the route of a court battle which might vindicate him if he wanted to. Because, with the client's lawyer not getting paid by either the client or the OB if the OB wins, AND with the client paying the OB's costs if the OB wins, those OBs with a strong case could finally have their day in court without worrying about BK and being un-insurable and thus unable to continue working. They also wouldn't face the pressure from their insurance companies to settle out of court early on (as does sometimes happen now) so as to avoid having to pay off the client's lawyer as well as his own.
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And juries are notoriously unpredictable. Even if you personally are 100% percent confident in the merit of your claim, you'd have to have some serious hutzpa to be willing to risk your entire financial security on the hope that a jury will find in your favor. That's Gambling with a capital G.

Bon,

Good point. The UK are amending processes to find juries to deal with medical and financial cases of this kind of complexity, because it is now understood that many laypeople simply could not understand the evidence presented. A famous pension case in the UK involving thousands of defrauded pensioners, fell apart when the jury confessed that they did not know what was going on in all the financial details presented and so could not reach a verdict. So, trials using panels of expert judges and expert juries were becoming more common when I left the UK... maybe that is a good answer for here.

In fact, I believe Louisiana already has a similar kind of set-up in place... an expert panel of some sort, which has restored balance to their system? Maybe JLC will see this, I vaguely remember him talking about it once. Unless I'm getting him mixed up with JohnGaltII.
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The UK are amending processes to find juries to deal with medical and financial cases of this kind of complexity, because it is now understood that many laypeople simply could not understand the evidence presented.

This is, unfortunately, all too true (that most juries are ill equipped to decide these cases). Lacking the expertise to be able to handle these complex cases, they are swayed all to often by passionate, emotional arguments that have little foundation in fact.

The silicone breast implant cases here in the United States are one prominent example of this.

Furthermore, as forensic science continues to grow in importance in criminal cases, we're finding the same problems in our criminal courts as well.

I've heard a few people argue that we should abandon our jury system in this country... and I find myself nodding, at least a little bit, as those who argue this do, indeed, have a point.

On the other hand, professional jurors - or having government personnel decide all these matters lends itself to other potential problems - which is why we have a jury system in this country in the first place.

It's a conundrum.

Personally, wouldn't want to see the baby thrown out with the bathwater, but at the same time I think jurors should be given an exam that shows at least some basic understanding of these complex matters before they are put on a jury.

In short, the jurors would and should still be independant citizens, but at least we'd know that they have a shot at understanding some of the arguments placed before them.

I'd think this would be beneficial to both sides in the case.

Regards,

Eldrehad
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The most distressing thing about this to me is that it indicates that the average citizen in a jury pool is such a mouth breathing idiot that they can no longer be trusted to pass judgment in a court case, or even to separate nonsense from reality. I actually don't blame trial lawyers. Lawyers are simply doing what they've always done: representing their client's interests to the best of their abilities. It is what they're paid to do, and for which they could be held liable if they failed to do it. It is why we have an ADVERSARIAL system.

To what extent "average citizen in a jury pool" reflects the average citizen I have no idea. However, it does seem a rather ominous precedent for the future of our country either way. If there is a correlation between the two, we're rapidly becoming a nation of fools. If there is not, it means that a significant portion of the population is doing their best to evade one of the most basic duties of citizenship, jury duty.

In fact, I'll even go so far as to say what Stossel is doing and what trial lawyers did in this case spring from the same source: They're both pandering to the overwhelming desire of Americans to refuse to look in the mirror and take responsibility for their own conduct. It is not my fault. It is (pick your favorite) due to doctors, insurance companies, trial lawyers, liberal or conservative TV commentators. It is not the fault of the audience of 20/20. It is not the fault of juries. It is not the fault of people who weasel out of jury duty. Blank out and start pointing fingers. Why not? Everyone else does it. I just know it ain't my fault.

Doubtless at some point or other in the above I'm falling into the "sweeping generalization" fallacy. I'm also taking all claims of fact made in the original post as fact, as I did not see the piece in question. However, I'd be most interested in seeing where my reasoning fails beyond those two notes.

Errata....

Stossel, therefore, accuses Edwards and other trial lawyers of "junk science" and adding unnecessary costs to our healthcare system.

It is not trial lawyers awarding these sorts of damages, it is juries. However, if Stossel had had the courage to point this out, doubtless he would not garner the ratings he does.

Anyone see John Stossel's "give me a break" segment on 20/20 Friday night? If not, you missed a pretty good story about how trial lawyers have added so much cost to our system without necessarily deriving any benefits for such.

It is NOT the trial lawyers who are doing this. It is the saps in the jury boxes who are generating these judgments. Joe and Mary Citizen.

This begs the question:

He singled out John Edwards and that (in part) because of his successful lawsuits against obstetricians, who delivered babies with cerebral palsy, that more C-sections are performed.

These lawsuits are successful precisely why? Either doctors and insurance companies cannot afford adequete counsel, or the average citizen -- at least those on juries -- now has such a headful of mush that they cheerfully loot one party and award another, even when such damages are not warranted. My actions no longer have consequences, it just feels good to give money to somebody weeping in a jury box. Then I'll complain when my auto/health/home insurance rates keep going up. Certainly couldn't be due to anything I actually did.

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To what extent "average citizen in a jury pool" reflects the average citizen I have no idea. However, it does seem a rather ominous precedent for the future of our country either way. If there is a correlation between the two, we're rapidly becoming a nation of fools. If there is not, it means that a significant portion of the population is doing their best to evade one of the most basic duties of citizenship, jury duty.

I think it's actually a lot more simple than that.

Take me as an example. When I get called to jury duty, I go willingly. I've been called to jury duty twice, been empanelled twice, and we reached a verdict both times.

The problem is with the long cases, however. If one of the cases were for a trial that was expected to go for months (the longest of the two trials I served on was two weeks, including deliberations), I would have asked to have been excused for reasons of financial hardship, and I would have in all proability been so excused.

I, for one, am neither of below average intelligence, nor am I trying as hard as I can to get out of jury duty. That doesn't change the fact, though, that it is a very real hardship for me to serve as a juror on a trial with an extended length - and I think this is true for a great number of people. Most people with middle class private sector jobs simply cannot sit on a jury for a trial that is going to run much longer than a couple of weeks without incurring financial hardship.

Again, while the correlation is far from perfect and this generalization is as dangerous as all generalizations - the truth is that most college educated people of working age are going to fall into a similar boat, and are going to be underrepresented on juries, especially for longer trials. As a result, I think that the education level of the average jury is less than the education level of the average U.S. citizen - even if the more well educated aren't actively trying to get out of jury duty.

How to fix this? I don't know. I can't think of a solution off the top of my head that won't cause hardship on either employees or employers.

Regards,

Eldrehad
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If there is not, it means that a significant portion of the population is doing their best to evade one of the most basic duties of citizenship, jury duty.

I have never been placed on a jury and I've been called to duty a few times. As soon as either lawyer hears that I have a degree, and expecially when they hear I have a masters, you can tell that I will be knocked off the panel. They may continue to question me but they're mundane questions simply to drag it out so that it's not completely evident as to what question knocked me off the panel.

One of my friends was in seminary and he had the same experience as I did. As soon as the lawyers hear that someone either has, or is going for higher education, they're off the panel.

Agent
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How to fix this? I don't know. I can't think of a solution off the top of my head that won't cause hardship on either employees or employers.

Off the top of my head...loser pays court costs...jury pay becomes a court cost.

hewler
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No offense foolferlove,
But I was just wondering if you had to pay your first malpractice premimum yet?


Hee hee. No offense taken. And no, I've not yet gotten my MD, so I pretty green, personally. BUT...because I'm in an md/phd program, the classmates I've started with are now full-blown, post-residency doctors in the real world. And I know what their salary is, and what they pay for insurance, so I'm familiar with the scope of the problem.

But the problem is not just the LAWYERS. It's the fact that juries aren't qualified to make the types of decisions based on hard-science that is involved in these cases. Look at the Dow/Corning silicone breast implant case. Silicone does NOT cause any autoimmune diseases. Good studies and statistics done at the time were convincing. But you get a couple of people on the stand with some horrible disease, gotten soon after getting implants who say "LOOK what happened to me when I got implants!". Juries are swayed by the individual cases, and not by the science. That's a problem. There is no quick fix.

And while I am AGHAST at the a lot of the lawsuits against doctors, the problem goes much much deeper and broader than simply saying the it's the fault of the trial attorneys. That's like saying that if gun manufacturers simply stopped making guns, no one would be shot. Well, the good guys need guns for legitimate reasons...

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One of my friends was in seminary and he had the same experience as I did. As soon as the lawyers hear that someone either has, or is going for higher education, they're off the panel.

That is *really* interesting. Two people at work got called for jury duty - one is an assistant with no degree, and one is an MS mathematician. The assistant made the cut and served two weeks jury duty. The MS was eliminated in the first hour of questioning. I wonder if that was why...?
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I'm quite sure that's painting with far too broad a brush. While i've never spoken with Mr. Edwards personally on the matter, i feel very confident when i assure you that he does not believe a negligent doctor was behind "every single infant born with cerebral palsy."

But he'll sure go to court just in case THIS particular case was the result of negligence, or because THAT case might have involved negligence. He doesn't have to be right about negligence to go to court... he just has to believe that it's POSSIBLE there was negligence. I'm quite certain he'd tell you that it's up to the JURY to decide whether there was negligence involved... but most juries today are composed of members woefully incapable of making sound judgements. Trial lawyers are not concerned with Justice... they're worried about winning for their clients.

So he goes to court with a case that may or may not have any validity, then appeals to the emotions of the juries, painting it as the incompetent doctor vs. this poor, damaged family. Today, a doctor can do a good job in EVERY case and still be subject to practice-demolishing lawsuits, which means that there is increased demand for medical malpractice insurance, which drives up the price of said insurance, which is now driving doctors (obstetricians, particularly) out of business.

Why are obstetricians hit so bad? Because the baby may be damaged goods from the moment of conception due to inferior genetic material, but the doctor will be held accountable because he's unfortunate enough to have been in the room when the problems came to light.

-NGR
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how do we protect the rights of the consumer against multinational corporations--who would sooner kill people and hide the body than admit wrongdoing--without allowing abuses of the tort system that simply work to raise prices for the rest of us, the ones who ultimately end up paying for these huge verdicts?

I think we need to start holding people accountable when they make a decision, rather than letting them hide behind a corporate facade.

Corporations make no decisions... PEOPLE make decisions.

The corporation is not killing people and hiding the bodies... PEOPLE do that because they know they won't be held personally accountable. People make these antisocial decisions with impunity because they know they'll get away with it... even if they get caught it's generally just the corporation that pays the price.

Make people responsible AND accountable for their actions and the trend of management considering the company first and their ethics last (or never) will reverse itself over time.

-NGR
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Hi Bon,

It's not an entirely horrible suggestion, but it certainly runs the high risk of deterring people with legitmate cases from ever pursuing a cause of action because they fear losing and having to pay court costs they can't afford.

What about those wrongfully accused & victimized by the desire to protect the POTENTIALITY of someone possibly having a legitimate case to prosecute?

We can't screw everyone just to save the possiblity of defending a few either.

Just the cost to defend one of these cases could run into the hundreds of thousands if not millions.

EXACTLY!!!!

When the accused is innocent, WHO should carry the burden of protecting them (knowing full well that the cost must be paid BEFORE any certainty of innocence!)

Should EVERYONE have a gun to their temple and be forced to pay, merely if they are lucky enough to be accused?


There are penalties in the legal system for filing frivolous lawsuits. If it can be conclusively shown that a particular costly lawsuit was indeed frivilous, i'm in favor of making the loser pay. Otherwise, that's playing with fire.

Do you have ANY idea how ludicrous this is?

Someone wrongfully pursued and forcefully financially injured (even when finally acquitted or who's suit is vacated) must FURTHER incur financial injury merely to recover their costs (let alone become whole from the overall damages of the time & resources wasted... let alone to "PUNISH" those who forced the injury!)

Our system is ALREADY ON FIRE!!! Many trial lawyers have the system by the shorthairs, and are incented financially to suck it dry of all lifeblood at the costs of those who are the most productive & responsible.

We MUST take the burdon OFF the accused... at least unless/until they are found liable/guilty.

Dave
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How to fix this? I don't know. I can't think of a solution off the top of my head that won't cause hardship on either employees or employers.

Perhaps "Loser Pays" should extend to a reasonable wage while serving on a jury?

This would have the added benefit of discouraging long, drawn-out trials... they'd cost more rather than just padding the lawyers' billable hours.

A long trial is usually just an attempt by one side or both to obfuscate the facts beneath a pile of testimony.

-NGR

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As soon as the lawyers hear that someone either has, or is going for higher education, they're off the panel.

I propose reducing or eliminating preemptory challenges of jury members.

-NGR
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"FWIW, I am a future child neurologist (as in, I will be treating children with CP) and I fully support John Edwards"

=======================================================================

And FWIW, I won't be voting for John Edwards, yet it's clear to me Stossel is being a blowhard here, and I don't see how John Edwards did anything to harm the system.

Would you rather have a nebulous group of insurance companies and doctors who see 300 patients a week being the sole arbiter of what is right and wrong for *you*. Because that's exactly what you get if you tie the hands of trial lawyers. They are the only ones who actually look out for *your* best interests.

I want *my* lawyers to have as much power for *me*, because, well, there doesn't seem to be limits on the amount of power for everyone else. Nor should they.

-JAR
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"One of my friends was in seminary and he had the same experience as I did. As soon as the lawyers hear that someone either has, or is going for higher education, they're off the panel."

=======================================================================

Really?????!!!!!

My wife served on a murder trial while she was a Ph.D. candidate...

-JAR

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Would you rather have a nebulous group of insurance companies and doctors who see 300 patients a week being the sole arbiter of what is right and wrong for *you*. Because that's exactly what you get if you tie the hands of trial lawyers. They are the only ones who actually look out for *your* best interests.

I want *my* lawyers to have as much power for *me*, because, well, there doesn't seem to be limits on the amount of power for everyone else. Nor should they.


In a way, it seems to me like your argument is circular... but allow me to explain.

Not all lawyers are 'evil' people to are trying to game the system for their own benefit, though clearly some of them are. The question, then, is how do we limit the power of those trying to game the system will preserving the power for those who are doing real good?

Why I think your argument is circular is... one could make the same argument in reverse... you are saying "We need lawyers to have unfettered power becuase the HMOs have unfettered power." Well... "We need HMOs to have unfettered power because the lawyers have unfettered power." You make the "nebulous group of insurance companies and doctors who see 300 patients a week being the sole arbiter of what is right and wrong for *you*" out as some kind of bogeymen - and in doing so do the exact same thing as those who are making the lawyers out to be bogeymen.

Both arguments are, in my view, wrong.

Regards,

Eldrehad



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The expert opinions he used to support his cases on this may be proven incorrect as scientific knowledge expands, but that hardly proves that his sole motivator was his own personal gain or that he knowingly went after doctors who bore no responsibility for their patients' afflictions.


Didn't he make $27 million over four years?
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It's not an entirely horrible suggestion, but it certainly runs the high risk of deterring people with legitmate cases from ever pursuing a cause of action because they fear losing and having to pay court costs they can't afford. Just the cost to defend one of these cases could run into the hundreds of thousands if not millions.

And why should that expense be borne by the innocent party?

How about a system in which the loser pays the court costs up to the amount he spent on pursuing his cause of action?

There are penalties in the legal system for filing frivolous lawsuits. If it can be conclusively shown that a particular costly lawsuit was indeed frivilous, i'm in favor of making the loser pay. Otherwise, that's playing with fire.

Of course, making the losing party pay is pointless if the losing party has no significant assets. One attorney told me that you can't, for instance, generally go after an attorney for filing a frivolous lawsuit. If the attorney can demonstrate that his client wanted to sue the attorney's pretty much protected from litigation.
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Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers?

I'd say it's rarely a case of a negligent doctor or a malicious screwing by a corporation - though these cases of course do exist. But each case is sure to be pitched that way, as it's the best way for the lawyer to increase the payouts to both himself and his clients. A good plaintiff's lawyer appeals to the emotions of jurors much more than their intellect. Lawyers attempt to sway the jury's PERCEPTION of what would constitute justice... but don't want them to examine the idea of justice too closely.

REVENGE is not justice. PUNISHMENT is not justice. JUSTICE is justice. Yet juries often seem more interested in exacting Punishment and Revenge than dispensing anything resembling justice.

Half of winning a trial nowadays is in picking the right jury for your case. You can get another 1/4 of the way to a favorable decision just by throwing enough paperwork at a case.

People want to believe in a world where bad things don't happen to good people, so they want to find someone to blame when things go poorly. Appeals to emotion outstrip appeals to reason.

Good outcomes are not guaranteed in medicine, and bad outcomes don't automatically indicate that someone has done something wrong. Yet any bad outcome in health care is seen as justification for a lawsuit. I think a lot of people aren't really sure whether their doctor has been negligent or not. So what do they do? They go see a lawyer. The lawyer will say "you probably have a case there" (notably different than "your physician was probably negligent").

People in today's America are already looking for someone else to blame for things that are obviously their own fault in the first place. When something bad happens to them, they again look to assign blame for that bad outcome, even if there's actually no one at fault. That they may enrich themselves in the process is of course mere coincidence.

-NGR
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Namely, how do we protect the rights of the consumer against multinational corporations--who would sooner kill people and hide the body than admit wrongdoing--

Just as some believe that all trial lawyers are only out to extort money from corporations, others seem to believe that all multinational corporations are out to kill people for profits. The above excerpt seems to support the latter assertion, though I don't think that this is what was meant.

The problem is that while I can certainly see a reason why most corporation wouldn't want to kill people and try to cover it up (I'm not saying it is impossible, mind you, but it would be incredibly stupid); but I can, however, see a reason why most trial lawyers would be encouraged to use the jury system as a de facto lottery. Namely, the lawyers would win no matter what, and the higher the award the larger their cut. Not all lawyers would do this, just as not all poor people would rip of welfare... but it is possible for some to do so, and there certainly is an incentive for such abuse. Something has to be done to reduce (if not prevent) abuses of the system. Limiting the amount of rewards seems to be the best way to do this.

Mike

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The expert opinions he used to support his cases on this may be proven incorrect as scientific knowledge expands, but that hardly proves that his sole motivator was his own personal gain or that he knowingly went after doctors who bore no responsibility for their patients' afflictions.

Didn't he make $27 million over four years?

(A) I don't know exactly what his earnings were, though i've heard numbers in that range. It's probably at least in the ballpark.

(B) So what? Are you pulling a vintage Alchook and attempting to make a complex argument with a simple statement or question? Rather than me attempting to deduce your entire complex argument, would you care to state it for me in more definite terms?

Cause it appears on the surface that you're either attempting to refute my claim that personal gain was not Edwards' sole motivator or you're attempting to refute my claim that he didn't knowingly go after doctors who bore no responsibility for their patients' afflictions, or both.

But i'd rather know precisely what you're arguing before i argue back.

Bon
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PUNISHMENT is not justice. JUSTICE is justice. Yet juries often seem more interested in exacting Punishment and Revenge than dispensing anything resembling justice.

Hmm. Justice is justice. Going to have to ponder that wisdom. Sounds like some Yogi Berra material.

Seriously, you really don't believe punishment is an element of justice? Should we not punish a murderer for the cold-blooded killing of another human being? What is your belief on how to achieve justice in the case of a murderer?

Bon
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But i'd rather know precisely what you're arguing before i argue back.

Bon


It just seems that, in defending either Mr. Edwards or the tort system, the term “sole motivation” sets the bar rather low for you. I would agree that financial gain was not Mr. Edwards' sole motivation. Then again, I imagine that financial gain was not John Gotti's sole motivation either.

The question more germane to those of us who question the integrity of the system is whether the financial gain might not be sufficient motivation for an attorney to stoop to unscrupulous or dishonest tactics in an effort to secure a verdict.

But you probably know the answer to this one better than I do. How talented would a lawyer need to be to convince a jury that $27 million is a pretty good motive to bend the rules a tad?
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I want *my* lawyers to have as much power for *me*, because, well, there doesn't seem to be limits on the amount of power for everyone else. Nor should they.

What a ridiculously narrow-minded point of view, akin to, "I want my lawyer to be able to advance any argument, no matter how ridiculous the claim might be, and be allowed to torture science and law in any fashion to confuse the issue so I can win, even if I shouldn't. And my lawyer and I should be able to walk away from the havoc we cause without any retribution, even if we lose."

What a great standard.

Dean
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Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.

They should absolutely be able to sue. But they shouldn't be able to wreck a good doctor's life and livelihood in the pursuit of a bogus claim of malpractice.

What is the best proposed solution for the perceived harm that these trial lawyers are inflicting on America? Serious question.

Loser pays. The Brits use this system. I think it would work here, because it would cut down on junk science and spurious lawsuits. Yes, it would be an additional hurdle for marginal cases, but the defendant would have the same risk, thereby encouraging both sides to settle. I find this better than a system that encourages parties to go to court.

I wonder how intense the mania has become.

You wouldn't wonder if you lived in a rural area where the doctors decided that staying in medicine wasn't worth the risk, and you needed such a doctor.

Lawyers like John Edwards get to not only walk away from the damage they cause using junk science, but get to be enriched by it, and even praised for 'looking out for the little guy'. My guess is that people like John Edwards will never have to look hard to find a doctor, but I'd love it if there were some poetic justice in the world in this case.

Dean

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Foolferlove,

While I wish you only the best, I fear that it is only a matter of time before you are sued for malpractice, or at least feel the pain of malpractice insurance to the point that you wonder, "why am I putting up with all this?"

Let us know how you feel about the direction of health care after you've been practicing for a few years. I'm guessing your viewpoint will change significantly. I recently read a JAMA editorial where a doctor using evidence-based medicine (if that's the term; I'm not a doctor) was sued and found liable for malpractice, even though science was solidly behind him. Evidence-based medicine, as I understand it, encourages doctors to use the best available methods at the time to treat patients. The plaintiff's attorney argued that since the treatment wasn't what the majority of doctors in this specialty used, it was per se negligent, and won because of it. It didn't matter that it 1) using the standard methods probably wouldn't have mattered, or 2) that the treatment used was based on solid science. The end result? Evidence-based medicine, which encourages progress in medicine, took a major hit. Now, doctors will be that much more encouraged to ignore new methods, and 'follow the book'.

As I said, though, I really only wish you the best.

Dean
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My apologies to JARandom, and the rest of the board, for my lack of civility in this post:

http://boards.fool.com/Message.asp?mid=21074820

I happen to be a lawyer, but I really don't like trial lawyers (can you tell?). I don't think they need to be encouraged to do whatever it takes to win; on the contrary, I think they need to be reined in, because to too many of them, it's about the fee, not justice. Sorry for the rant.

Dean
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Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.


A person (or corporation) who causes harm due to negligence or maliciousness has committed a criminal offense. Justice in either case should be determined in a criminal court with said court's strict standard of “beyond a reasonable doubt” being applied. The criminal court is, or at least was in the past, capable of determining guilt or innocence, if and how much restitution is appropriate, and the appropriate punishment.

In our justice system, the determination of guilt or innocence is supposed to be final. Double jeopardy law protects a person from being tried more than once for the same crime. So, no matter how much I may believe that O.J. did it, I do not believe anyone has the right to re-try him in Civil Court.

Restitution is intended to restore the harmed individual(s) to their pre-harmed state. Since this is obviously not physically possible in many cases, such as the loss of a limb or a life, we generally substitute money for that which was lost. Restitution is, in my opinion, the only thing the harmed individual is due. So, the old lady who spilled her McDonalds coffee in her lap may be due medical expenses and a new pair of panties, but not a million dollars.

That brings us to punishment. If punishment, whether it be incarceration, death, loss of license, monetary fine, etc. was the exclusive purview of the Criminal Court, most trial lawyers would be out of business. The monumental punitive damages awarded by juries are the bread and butter for trial lawyers. This is why they want people with less education and lower economic status on the jury. If they can turn the trial into class warfare they can win big. So, in Civil Court, if the most a plaintiff will be awarded is restitution, the multimillion dollar paydays for trial lawyers will disappear. Plenty of good lawyers will still make plenty of good money but the "blood suckers" will be severely limited.


The Barbarian
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Hmm, anyone know any doctors suggesting C-sections to uncomplicated deliveries simply so they can avoid the risk of a lawsuit in the case of a problem vaginal delivery?

I know lots of hospitals that have stopped offering patients the option of a vaginal delivery after a previous C-section strictly because of litigation concerns. I'm on staff at one.

Does anyone know how many doctors get sued as the result of a complication from a C-section (of which there are many, including maternal death due to bleeding, infection, etc)? I do personally know a doctor who DID get sued when an infection after a C-section caused the woman to be sterile. So why aren't doctors going to choose vaginal deliveries instead of C-sections so they don't get sued for a complication as a result of the C-section?

Because a lawsuit from a brain-damaged baby case can cost a lot of money and end a career.
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It just seems that, in defending either Mr. Edwards or the tort system, the term “sole motivation” sets the bar rather low for you.

It's elementary, my dear Watson. The lower the standard, the easier it is to pass inspection : )

The question more germane to those of us who question the integrity of the system is whether the financial gain might not be sufficient motivation for an attorney to stoop to unscrupulous or dishonest tactics in an effort to secure a verdict.

From one angle, i'd agree that is the important question. From another angle, i'd disagree. The OP referenced Stossel's allegations laid at the feet of John Edwards specifically. So your question then is too broad. But i agree that when considering the tort system, it is a valid issue worthy of addressing.

Regarding Mr. Edwards specifically, he strikes me as a man of high integrity. Moreso than many politicians. Still, it is impossible for anyone to fully evaluate how he went about winning those trials without examining all of the evidence he had at his disposal and further examining the record of the trials themselves to see how he actually conducted himself. As we do not have access to such comprehensive information, i'd say we are at an impasse.

On the more general note, of course the prospect of obtaining several million dollars through one trial is enough to motivate some attorneys to stoop to unscrupulous or dishonest tactics in an effort to secure a verdict. But once again we face the problem of how to implement a practical solution.

I've heard some interesting ideas on this board thus far, and i'm sure the debate will continue into the forseeable future.

The essence of my position at the moment is that the problem is more complex, has more facets, and requires a much deeper understanding than most people realize or admit. I think a lot of people have soundbite solutions that sound really good on Fox News or in a brief message on an internet discussion board, but i don't think the people offering these pithy solutions understand the full ramifications of their proposals.

I'm not saying the system isn't broken. I am saying that i wouldn't support breaking it in a different place to fix the current ailment.

Bon
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Great post and great thread.

As an experienced emergency physician confronting the tort problem on the frontlines of medicine, I can add my view.

First of all, it is abundantly clear that the civil legal system is in need of serious fundamental reform.

In the past week, I've had two patients loudly threaten to sue me. This is not unusual. In one case, the patient had been in the ER for only a few minutes and I hadn't even seen him. In the other case, a patient disagreed with my medical opinion on a minor issue. I am astonished and disturbed by this shameless abuse of the medical profession. It is the sign of a civil legal system completely out of control. The same patients who threaten or actually sue myself or my colleagues ultimately rely on us to save their lives. This doesn't dissuade them from frivilous threats or lawsuits.

Thus far, I have not been successfully sued although I anticipate that I will be in the future. Most of my colleagues have been. All of them are good competent and caring doctors. I have yet to know of a case of clear malpractice among them.

Today, people usually sue because of a bad outcome in medicine and rarely due to known negligence. If obvious negligence has occurred, the case is usually settled and does not go to trial. When they sue, they usually sue EVERYBODY who had contact with a patient near the time of the bad outcome. The lawyer then pores over the medical record looking for something which might be questionable and might look negligent to an uninformed jury. Given the complexity and size of modern medical records, the lawyer can usually find something to question. A skilled lawyer then usually parades a slimeball medical "expert" (usually outside consensus medical opinion) in front of the jury. He contrasts the suffering of the "victim" and the rich rewards of a well-compensated physician. He then plays on the emotions of the largely medically ignorant jury to extract a large sum of money from an impersonal insurance company.

The specter of frivilous lawsuits hangs menacingly over physicians and extracts a terrible toll. It has poisoned the physician-patient relationship. The personal anguish felt by the accused physician is difficult to describe. Their professional and even personal integrity is questioned. They are forced to devote countless hours to defending themselves. The immense costs to the medical system are fourfold: the direct costs of legal defense/malpractice, the personal time devoted by medical professionals (physicians, nurses, etc.) to legal issues, the defection of capable physicians from medicine (to other fields or early retirement) and the enormous undefined costs of defensive medicine (additional tests and treatment as well as copious medical documentation).

There are a few necessary reforms which could make a difference:

1) "Loser pays" which would even the playing field and deter lawsuits of questionable merit. The cost SHOULD be borne by the attorney who has both the means to determine the merit of a case and the means to pay. There SHOULD be a cost to legally harrassing somebody.

2) Expert juries in cases requiring specialized expert knowledge. Today, jurors with the LEAST knowledge in the specified area are chosen.

3) Reasonable limits on punitive awards. The idea of an unlimited award is absolutely insane. This is the civil legal equivalent of "cruel and unusual punishment." I would even suggest that punitive awards should not be awarded to the plaintiff but should be treated as a fine and handled by the state.

4) The reform of class action lawsuits which enrich ONLY attorneys.

5) The end of "forum shopping" where attorneys can search nation-wide for a friendly venue.

6) Raising the standard of proof in civil lawsuits from "preponderance of the evidence" to one closer to the criminal standard of "beyond reasonable doubt." The extraction of hard-earned money needs to be taking as seriously as other punishments.

Some would also suggest limiting advertisements by attorneys which the UK already does. This does tread on free speech rights and may be uneccessary if fairness is instilled in the system with the above reforms.

I would suggest some interesting reading for those so inclined:

The Death of Common Sense by Philip K. Howard

The Collapse of the Common Good (How America's Lawsuit Culture Undermines Our Freedom) by Philip K. Howard

The Case Against Lawyers by Catherine Crier

The corrupt civil legal system is not only a direct and indirect cost to us all but a serious threat to our civil liberties.

All trial lawyers are not evil. A system which allows unfettered legal assault of citizens is evil.

Nearing a presidential election in which one major party's largest contributor is the trial lawyer lobby and their presidential ticket is headed by trial lawyers, this issue couldn't be more relevant.


wolvy






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Hmm. Justice is justice. Going to have to ponder that wisdom.

Perhaps you should. It was pretty clearly meaningful in context.

"REVENGE is not justice. PUNISHMENT is not justice. JUSTICE is justice."

A JUST decision is required in order for Justice to be done: any punishment and revenge that happens to take place should be a byproduct of justice being done, not an end in and of themselves.

Seriously, you really don't believe punishment is an element of justice? Should we not punish a murderer for the cold-blooded killing of another human being?

That was meant specifically to apply to CIVIL trials, not criminal cases... though I was in some respects speaking of juries in general. But I'll address your underlying point anyway. Yes, punishment may be a component of justice... particularly in criminal trials. But again, any sentence should be based on JUSTICE. A just punishment is proper; an unjustly severe or unjustly lenient punishment is NOT just. I know that sounds circular, but the problem as I see it as that our adversarial system has developed to the point where lawyers no longer pursue justice in any form, but singlemindedly seek the best outcome for their client, even if that means that Justice gets bloodied. The legal responsibilies of lawyers to their clients has been strengthened while the ethical responsibilities of lawyers to pursue justice seem to have somehow slipped away.

-NGR
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I happen to be a lawyer, but I really don't like trial lawyers (can you tell?). I don't think they need to be encouraged to do whatever it takes to win; on the contrary, I think they need to be reined in, because to too many of them, it's about the fee, not justice. Sorry for the rant.

Dean


Its always refreshing to hear some common sense from the legal field. Its tempting but inappropriate to demonize all lawyers. The three reading suggestions in my last post are all written by lawyers. My best friend and also my only first cousin are lawyers.

There are some bad apples in any bunch. Unfortunately, a system without reasonable constraints leads to more bad apples. You could say the same about the medical profession.

We need a better civil legal system which effectively punishes real malpractice rather than randomly picking off innocent bystanders.

Disclaimer: Although I don't wish to demonize all lawyers, I reserve the right to pass on a good lawyer joke when I hear one.

wolvy

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Regarding Mr. Edwards specifically, he strikes me as a man of high integrity.

By trial lawyer standards perhaps. The rest of us wonder about the integrity of scarfing up $27 million earmarked by jurors to compensate horribly debilitated victims. But the legal profession assures us that no personal liability attorney can reasonably be expected to lend assistance without the opportunity of earning far more from one lawsuit than the average person will see in many lifetimes.

I also understand that he was paid out of a “subchapter S” corporation that he set up with himself as sole shareholder. This allowed him to forgo nearly $600,000 in Medicare taxes, the income cap on which was lifted by the Democrats in 1993 so that a fair share would be paid into the system by the very wealthy. People like Mr. Edwards, for instance.

Of course, Mr. Edwards claims he didn't establish the corporation to avoid Medicare taxes. He established the corporation to protect himself from lawsuits.

Ironic, huh?
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Wolvy,

Your post reminded me of an article regarding medical malpractice with some similar tones written by Ron Paul (himself an MD) a while back:

http://www.lewrockwell.com/paul/paul83.html

I think Ron hits the nail on the head with the socialism argument.

I'm also reminded of my elderly grandfather (94 now) that complains when he goes to a dr. because he gets "poked and prodded" all over. I have pointed out two things to him that are painfully obvious: (1) the dr. is probably giving him a thorough exam due to his age, and (2) the dr. probably has a certain amount of fear that if gramps walks out of the office and has a heart attack a week later he could be sued for not recognizing it (regardless of how well it could have been detected).

Sorry state of affairs indeed.

Matt.
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I fear that it is only a matter of time before you are sued for malpractice

The statistics indicate I will get sued for malpractice, likely more than once. And it will likely be for something frivolous, or for some problem that is really no one's fault.

I agree, their needs to be reform, the system is broke. But is it Barry Sheck's fault that OJ was found not-guilty? Do we simply denigrate all defense attorneys because sometimes guilty people are found innocent for whatever reason?

The plaintiff's attorney argued that since the treatment wasn't what the majority of doctors in this specialty used, it was per se negligent, and won because of it. It didn't matter that it 1) using the standard methods probably wouldn't have mattered, or 2) that the treatment used was based on solid science.

Without details, it's hard to know what happened. If the original treatment decision was "evidence based" were the other doctors who did something else treating AGAINST the "evidence"? If the treatment used was solid science, why was it not the "standard method"? Again, we are back to the problem of uneducated juries being handed a problem that requires knowledge beyond what a prosecuting and defending attorney will give them during the course of the trial. Some doctors make horrible mistakes and get away with it. Some doctors provide the very best in care and get sued and lose. To say that the problem lies with the trial attorneys is to ignore the multiple issues and sides that make medical tort reform the complicated issue it is with no silver-bullet.

I will be sued. I know it. And I know that my winning or losing may have nothing to do my competence or my training. But to say that John Edwards, simply by virtue of having been a prosecuter against physicians makes him unfit to be vice-president is overly simplistic.

Why couldn't I say that George Bush is so closely aligned with energy interests that pollute the environment that he is unfit to be president?
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I think Ron hits the nail on the head with the socialism argument.

I'm also reminded of my elderly grandfather (94 now) that complains when he goes to a dr. because he gets "poked and prodded" all over. I have pointed out two things to him that are painfully obvious: (1) the dr. is probably giving him a thorough exam due to his age, and (2) the dr. probably has a certain amount of fear that if gramps walks out of the office and has a heart attack a week later he could be sued for not recognizing it (regardless of how well it could have been detected).

Sorry state of affairs indeed.

Matt.


Interesting article. Thanks for the link.

Paul's idea regarding "negative outcomes insurance" seems promising. It might give people some power to choose lower costs in lieu of an unlimited right to sue over negative outcomes. It would more efficiently put money in the pockets of unfortunate individuals instead of enriching lawyers. It would help avoid legal assaults on innocent and well-meaning medical professionals.

wolvy
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But the legal profession assures us that no personal liability attorney can reasonably be expected to lend assistance without the opportunity of earning far more from one lawsuit than the average person will see in many lifetimes.

Even after nearly four years of interacting with you at TMF, i still haven't figured out what your own personal politics and economic philosophy are, alchook; but speaking of irony... I think it's very ironic to see a criticism on the Libertarian board of someone using his talents to earn himself millions of dollars, a paradigm that is surely the ultimate example of the free market working as the good lord intended.

Aren't we all supposed to be free to use our abilities to amass large fortunes without pesky government interference? Or is government regulation only the enemy when it monkeys with "my" capitalistic aspirations? If i can then invoke it to reign in those evil trial lawyers, all of the sudden it becomes my friend?

Am i being unfair?

Bon
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Disclaimer: Although I don't wish to demonize all lawyers, I reserve the right to pass on a good lawyer joke when I hear one.

wolvy,

Always share lawyer jokes -- I love 'em. As I always say, 99% of lawyers give the rest of us a bad name. ;-)

Dean
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I will be sued. I know it. And I know that my winning or losing may have nothing to do my competence or my training. But to say that John Edwards, simply by virtue of having been a prosecuter against physicians makes him unfit to be vice-president is overly simplistic.

Foolferlove,

Your easy dismissal of litigation is overly simplistic. Lawsuits are highly stressful ordeals. They assault your personal and professional integrity. Frivilous lawsuits are a terrible evil.

Outside medicine, unecessary civil litigation tears apart families and friendships. It poisons the entire society.

I would highly suggest reading the books by Philip K. Howard and Catherine Crier which I mentioned earlier. They are both lawyers.

It may be difficult to get through the books since they're so depressing.

You are entirely wrong regarding Edwards. He built his ENTIRE CAREER AND LARGE FORTUNE through the extortion of money on the basis of unproven scientific claims. This extorted money ultimately is a tax on the medical system and comes from everybody's pocket. Anybody who's entire career is based on extortion and scientific fraud is unfit for the office of dog catcher let alone the office of vice president. He is either a willful participant in massive fraud or horribly ignorant.

Either way, he is not qualified to hold high political office.

Furthermore, his BIGGEST donors are trial lawyers. He is a puppet bought and paid for by this very narrow and corrupt special interest.


wolvy
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Aren't we all supposed to be free to use our abilities to amass large fortunes without pesky government interference? Or is government regulation only the enemy when it monkeys with "my" capitalistic aspirations? If i can then invoke it to reign in those evil trial lawyers, all of the sudden it becomes my friend?

Am i being unfair?


Bon,

I believe you're failing to appreciate a key distinction between trial lawyers and most other businesses. Most businesses offer you a product or service, which you can buy or not buy, and it's your choice. Trial lawyers don't ask, and don't offer. They use the force of the legal system to take property away from others and give 2/3 to their clients, and keep 1/3 for themselves. They are using the government to achieve their goals, so it is only reasonable that they government should be the one to 'rein them in'. In fact, it is the only one who can.

Now, I'll freely admit that in many situations, justice is done, and lawyers right civil wrongs that would otherwise go uncompensated. However, you should readily admit that there are elements of the plaintiff's bar that are decidedly anti-libertarian.

Dean
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Aren't we all supposed to be free to use our abilities to amass large fortunes without pesky government interference? Or is government regulation only the enemy when it monkeys with "my" capitalistic aspirations? If i can then invoke it to reign in those evil trial lawyers, all of the sudden it becomes my friend?

Am i being unfair?

Bon


Your arguments fail when you consider that trial attorneys are essentially agents of government power. They wield power granted by the government to drag citizens into court and take their money. This power should be constrained.

When lawyers become multimillionaires and even billionaires through the exercise of government-granted power, its reasonable to argue whether this power is reasonably constrained.

Let's say other agents of government power such as judges or police officers were given a cut of fines allowing them to amass fortunes ten times or even a thousand times that of affluent Americans. Wouldn't that warrant some serious questioning of their power?

wolvy
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Foolferlove,

Not to pile on, but I have to agree with wolvy here. A couple of thoughts:

1) Litigation is easy to dismiss unless you've been through it. I have not been involved in it myself, but I have heard enough war stories from colleagues to convince me that I wouldn't want to, even as an attorney. I can't imagine what it would be like to have my professional credentials and judgment paraded before a jury. Even if you're completely right, and you win, it would be a painful experience. And that's the BEST it could be.

2) As to your question of why the new method used by the doctor who was sued was not the 'standard method', I have to ask how new standard methods would ever come into being without a doctor going against the old standard? The fact is that if every doctor who tries a new method can be shown to be committing malpractice solely by the act of 'not adhering to the standard practice', then lawyers will have effectively stopped all progress in medicine. All a lawyer needs is 1) a negative outcome (not hard to find) where 2) a doctor tried anything different than the standard procedure. It doesn't matter if the new procedure was better; only different. The jury can infer (and the plaintiff's attorney will certainly spin things that way) that the negative outcome was CAUSED by the new procedure. Result? Medical progress grinds to a halt.

3) As to not knowing all the facts about Edwards, you're right that we don't. But Edwards must have known that there was absolutely no scientific evidence supporting a claim that vaginal births cause CP, because none has EVER been found. I find it interesting that the same people who have long lamented that no WMD have EVER been found*, are willing to give Edwards a free pass on the same type of evidence.

Dean

*- It's my understanding that sarin shell(s) were found, but it didn't make many headlines.
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Your easy dismissal of litigation is overly simplistic. Lawsuits are highly stressful ordeals. They assault your personal and professional integrity. Frivilous lawsuits are a terrible evil.

I completely agree with you concerning the frivilous lawsuits. But which one are frivilous and which are legit and who decides?

Outside medicine, unecessary civil litigation tears apart families and friendships. It poisons the entire society.

I also agree. On the other hand, lawsuits with merit have sucessfully helped prevent companies from continuing to employ methods or create products which kill/harm/etc. Government regulations or oversight from other regulatory boards are often time insufficient. SOMEHOW the system needs to protect the innocent from a system that has at times put dollars above human lives.

Furthermore, his BIGGEST donors are trial lawyers. He is a puppet bought and paid for by this very narrow and corrupt special interest.

You know, I won't dispute this. Tort reform is a fundamental issue in critical need of being addressed NOW. But overall, I feel that the special interests that support the democrats are preferable to the special interest that support the Bush. Given the choice of the two marrionettes I have this fall, the people pulling the Bush-Cheney strings scare me far more than Kerry-Edwards. I fully believe that as an American I will be much safer under Kerry than under Bush. And right now, safety/terrorism is one of my top issues. Edward's occupation is on the "con" side, but the overall "pro" balance tips very much to Kerry-Edwards.
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Even after nearly four years of interacting with you at TMF, i still haven't figured out what your own personal politics and economic philosophy are, alchook; but speaking of irony... I think it's very ironic to see a criticism on the Libertarian board of someone using his talents to earn himself millions of dollars, a paradigm that is surely the ultimate example of the free market working as the good lord intended.

I'm a believer in free markets. And the theme of my answer has already been given here. If Nike wants to pay Tiger Woods $100 million to represent the company, more power to him.

But the litigation system usurps the marketplace. And it does a poor job of serving the public. In fact, it seems designed to serve nothing but the litigation industry. Using it to amass a personal fortune strikes me as something other than virtuous.
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I fully believe that as an American I will be much safer under Kerry than under Bush.

Foolferlove,

This is Kerry's position on Iraq, straight from the horse's mouth:

http://www.johnkerry.com/issues/national_security/iraq.html

Now, this is my conservative streak coming through, but taking his four bullet points and 'reading between the lines', it sounds like Kerry is inclined to just turn over Iraq to France and Germany, and wash our hands of the whole ordeal. This will only embolden terrorists in the Muslim world.

More troubling, nowhere does he say anything along the lines of, "We're going to attack terrorists that attack us or any of our allies." Every time he speaks of terrorists, it's in a defensive mode (hardening defenses, gathering intelligence, etc.) or it's qualified ("without intruding upon personal liberties"). Now, I believe I value my personal liberties as much as anyone, but I also realize that this is not a war that can be fought entirely on the defensive, and in a politically correct manner. This isn't an academic exercise. That is my biggest concern with Kerry. If he can't even SAY we will attack terrorists when necessary, then I don't believe he ever WILL.

Dean
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I completely agree with you concerning the frivilous lawsuits. But which one are frivilous and which are legit and who decides?

No one individual should decide. Expert juries in specialized cases and a "loser pays" system would weed out meritless or "frivilous" cases.

I also agree. On the other hand, lawsuits with merit have sucessfully helped prevent companies from continuing to employ methods or create products which kill/harm/etc. Government regulations or oversight from other regulatory boards are often time insufficient. SOMEHOW the system needs to protect the innocent from a system that has at times put dollars above human lives.

I also agree that our civil legal system is an important instrument to settle disagreements and right wrongs. The current system often extends disagreements and creates wrongs. We need a fair civil legal system which is used only when truly necessary and is not so easily abused. The current explosion of frivilous lawsuits often delays or prevents those with merit from receiving proper consideration. I'm reminded of the current asbestos litigation. In this case, some real victims have been compensated and some perpetrators justly fined. At the same time, lawyers have become billionaires, companies with only periperal involvement have been bankrupted, and healthy "victims" have been rewarded. There's no money left for many real victims. The breast implant litigation was another major debacle based on ultimately disproven scientific claims.

You know, I won't dispute this. Tort reform is a fundamental issue in critical need of being addressed NOW. But overall, I feel that the special interests that support the democrats are preferable to the special interest that support the Bush. Given the choice of the two marrionettes I have this fall, the people pulling the Bush-Cheney strings scare me far more than Kerry-Edwards. I fully believe that as an American I will be much safer under Kerry than under Bush. And right now, safety/terrorism is one of my top issues. Edward's occupation is on the "con" side, but the overall "pro" balance tips very much to Kerry-Edwards.

If you truly feel that other issues favoring Kerry-Edwards are more important, you should vote your conscience. How you can "fully believe" that you "will be much safer under Kerry than under Bush" is incomprehensible to me. Although I will likely vote for Bush in the Fall, I wouldn't even make this claim in support of Bush. Although my analysis strongly suggests that Bush is a far better bet on national security issues, no absolute conclusions can be made. On libertarian issues, both major parties are a disgrace. I do feel two major pressing issues with seriously negative libertarian consequences, namely an out-of-control civil legal system and discriminatory taxation, are major negatives for the Democratic Party.

wolvy





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Now, this is my conservative streak coming through, but taking his four bullet points and 'reading between the lines', it sounds like Kerry is inclined to just turn over Iraq to France and Germany, and wash our hands of the whole ordeal. This will only embolden terrorists in the Muslim world.

More troubling, nowhere does he say anything along the lines of, "We're going to attack terrorists that attack us or any of our allies." Every time he speaks of terrorists, it's in a defensive mode (hardening defenses, gathering intelligence, etc.) or it's qualified ("without intruding upon personal liberties"). Now, I believe I value my personal liberties as much as anyone, but I also realize that this is not a war that can be fought entirely on the defensive, and in a politically correct manner. This isn't an academic exercise. That is my biggest concern with Kerry. If he can't even SAY we will attack terrorists when necessary, then I don't believe he ever WILL.

Dean


Well said, Dean. If national security is the deciding issue, its Bush hands down.

wolvy
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Now, this is my conservative streak coming through, but taking his four bullet points and 'reading between the lines', it sounds like Kerry is inclined to just turn over Iraq to France and Germany, and wash our hands of the whole ordeal. This will only embolden terrorists in the Muslim world.

I don't agree with your analysis of Kerry's position. I also feel that the US is much WEAKER as a nation while we are in Iraq. But we cannot pull out until the job is done, but at the same time, when will the job ever be done? Our military does not have the capability at the moment to respond to threats elsewhere. I don't see Bush addressing this problem. And I think the terrorists in the Muslim world are more emboldened than ever before, and what we do in Iraq is going to change that fact very little. Al Queda attacked us at home, and due to an ill-advised decision to go into Iraq in the manner we did, we brought even more instability to the Middle East...score 2 for the bad guys. Saddam could have waited. Bush's impatience has made us weaker in the fight against terrorism, not stronger.

More troubling, nowhere does he say anything along the lines of, "We're going to attack terrorists that attack us or any of our allies."

I would hope he wouldn't have to say that. Do you really think he will allow a terrorist attack on the US to go unpunished? But which is more important, bringing Osama Bin Landen to justice or preventing a future attack...sometimes those two goals will be opposing. What is Bush's position on this? I'm not clear.

Every time he speaks of terrorists, it's in a defensive mode (hardening defenses, gathering intelligence, etc.) or it's qualified ("without intruding upon personal liberties").

Well, that's smart, since I believe Bush has neglected our defense at the expense of offense, and the pendulum needs to swing back a bit.

Now, I believe I value my personal liberties as much as anyone, but I also realize that this is not a war that can be fought entirely on the defensive, and in a politically correct manner.

I don't feel Kerry will do this, nor do I feel his commitment to strengthening America at home will come at the expense of "getting the bad guys".

Anyway, we've come a long way from Edward's trial lawyering...as O'Reilly would say "I'll give you the last word"

It's the least I could do for a Tar Heel.

FFL

P.S. I really hope to move back to the Triangle some day.
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I think it's very ironic to see a criticism on the Libertarian board of someone using his talents to earn himself millions of dollars, a paradigm that is surely the ultimate example of the free market working as the good lord intended.

I, for one, fail to see the irony at all.

Now, I've never called myself a libertarian, but I would personally think that the extreme libertarian viewpoint would indeed be to allow people to use their talents as much as possible to earn as much money as possible.

That said, the same libertarian viewpoint wouldn't allow for these lawsuits at all. It's not a matter of constraint - if they're not happening at all, there'd be no need to constrain them. The extreme libertarian viewpoint I'm speaking of is 'caveat emptor'.

It's not at all inconsistent for a libertarian, in my view, to call for restraining an activity that extreme libertarians wouldn't even allow in the first place.

Again, I've never called myself a libertarian, and by absolutely no means whatsoever do I pretend to speak for any libertarian, let alone all of them.

But if you're looking for irony, I just don't see it.

Regards,

Eldrehad
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That said, the same libertarian viewpoint wouldn't allow for these lawsuits at all. It's not a matter of constraint - if they're not happening at all, there'd be no need to constrain them. The extreme libertarian viewpoint I'm speaking of is 'caveat emptor'.

It's not at all inconsistent for a libertarian, in my view, to call for restraining an activity that extreme libertarians wouldn't even allow in the first place.


Exactly.

The logical result of our current largely unrestrained litigation is a libertarian's nightmare. Rampant litigation frightens businesses and people and deters them from pursuing activities with any perceived risk of litigation.

Imagine a future (rapidly developing) if we stay on our current course. You want that new medicine which might save you from a terminal illness? Too bad, it might kill you and we can't have that - even if you're going to die for certain without it. You want to eat anything other than fruits and vegetables? Too bad, all other foods aren't available since companies and restaurants have been sued out of existence. You want to have a beer? Too bad, all forms of alcohol are not available since all the now-defunct companies were held liable for the actions of intoxicated people. You want to fly on an airplane or drive a car? Too bad, airlines and auto manufacturers no longer exist since they were held liable for all accidents and terrorist attacks. What a great future. No risk. No lawsuits. No freedoms. You can't be trusted with them.

Multimillionaire and billionaire trial lawyers are THE greatest threat to our individual liberties. As trial lawyers grow richer, they gain greater political power. Heck, they have even bought one of the two major parties and one of the two major party presidential tickets. That's truly FRIGHTENING.

wolvy
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But the litigation system usurps the marketplace. And it does a poor job of serving the public. In fact, it seems designed to serve nothing but the litigation industry. Using it to amass a personal fortune strikes me as something other than virtuous.

Case in point:

Has anyone here heard of the Trevor Law Group?

Closed for good now are about 3,000 controversial lawsuits the lawyers filed against auto-repair shops in Orange and Los Angeles counties and restaurants in Los Angeles County. The trio sued business owners under the state's leading consumer protection law. The charges were minor, but the firm sent defendants threatening letters demanding settlements of up to $20,000, though most cases that settled did so for about $2,500. The State Bar alleged the Trevor Law Group operated Consumer Enforcement Watch as a shell corporation to extort money.

[Emphasis mine]

http://66.218.71.225/search/cache?p=trevor+law+group&ei=UTF-8&cop=mss&u=www.ocyr.org/register6-11.htm&w=trevor+law+group&d=3013A06BA5&icp=1

Living in California, I actually followed this case relatively closely. These lawyers would single out small businesses, especially those with minority owners, and sue them based on a well-meaning consumer protection law. The violations sued over with regard to auto repair shops would be for things like failing to fill out an invoice correctly... for restaurants it might mean leaving a towel on a counter where it wasn't supposed to be.

The worst part about this, other than perhaps singling out minority owners for the shakedown as these people were probably less familiar with the legal system and therefore more likely to settle, was that there were absolutely no damaged or even complaining parties. This group of lawyers would scour public records for infractions, sue, bully, and intimidate - trying to get a settlement even though no harm was done - and funnel the settlements into the for profit corporation called "Consumer Enforcement Watch" which they conveniently also happened to own/control. This wasn't even cases on a contingency basis, like those Mr. Edwards argued, where there was a real, complaining person who was actually damaged (putting aside, for now, whether or not those sued were responsible for the damage) - and who got a portion of the settlement.

The lawyers in the Trevor Law Group kept both their fees and the settlement money which was routed to their own for-profit corporation.

And where was the trial lawyers' association with regard to all of this? Well... be prepared to be amazed.

So the system's finally working the way it ought to, right? If you think so, you may have missed the latest from the state Legislature in Sacramento, whose Democratic leadership is using the shakedown scandal as an excuse to rush to passage a bill devised by the state's trial lawyers association which would actually expand the law in question so as to give lawyers more leverage to extract settlement money on dubious 17200 claims.

[Emphasis mine]

http://www.keepmedia.com:/Register.do?oliID=225

Is Mr. Edwards better than those members of the Trevor Law Group? I both think and hope so - he, at least, had real clients who had suffered real damage... but the danger is very, very real. Tort reform is desperately needed in this country, and I, for one, do not think a current or former trial lawyer is the best person to bring about the change. Even if Mr. Edwards is well-meaning, I, for one, wouldn't trust him as he is backed by the same powerful lobbyists who in the face of the Trevor Law Group scandal sought to 'reform' the system not by constraining it, but by expanding it.

Sounds to me more like letting the fox gaurd the henhouse.

Regards,

Eldrehad








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wolvy: 2) Expert juries in cases requiring specialized expert knowledge. Today, jurors with the LEAST knowledge in the specified area are chosen.

6) Raising the standard of proof in civil lawsuits from "preponderance of the evidence" to one closer to the criminal standard of "beyond reasonable doubt." The extraction of hard-earned money needs to be taking as seriously as other punishments.

=======================================================================

Really great post, wolvy. In regards to 2), I love this idea, but I think we should set the number of experts to around half of the jury.

In regards to 6), I think a purist libertarian would insist on this one, and I think it's an excellent idea.

-JAR
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Hi FFL,

But which one are frivilous and which are legit and who decides?

This is EASY;
ALL ARE FRIVOLOUS and the liability of the complainant until clearly proven otherwise beyond a shadow of a doubt! THUS, anyone (including representing attorneys) suing is deemed responsible for their actions & damages until THEY prove they are right.

If they aren't strong enough in evidence to put others at risk of damages & injury, then ALL are best served for them to step down.

SOMEHOW the system needs to protect the innocent from a system that has at times put dollars above human lives.

PHEW!!!! Prior to this statement I thought you were DEFENDING the current system! It's the LEGAL MACHINE that the innocent need protection from as well!

I fully believe that as an American I will be much safer under Kerry than under Bush.

This question is NOT a challenge to this belief, but a request for it's support;
WHAT has you believe in Kerry? What are his strong points? ("Not Bush" is a massive copout.)

I'm no fan of Bush, but we've seen both the good & the bad.
Kerry's shown NOTHING very good. And Bush may not be great, it IS possible to do worse then Bush.

Frankly, Kerry's existing positions & alignments seem extremely risky...
What makes Kerry worth the risk, standing on his own?

Dave
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But if you're looking for irony, I just don't see it.

I don't go looking for irony, it just finds me.

Bon
-attracter of irony
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2) Expert juries in cases requiring specialized expert knowledge. Today, jurors with the LEAST knowledge in the specified area are chosen.


Juries are a stupid idea anyway. You put a bunch of amateurs on a job and see what you get.
Also, I would have a court appointed expert testify as the primary expert witness.
That would give balance to the trial.
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Juries are a stupid idea anyway.

Tell that to the Framers of the U.S. Constitution. Boy did those guys have it backwards.

Bon
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Tell that to the Framers of the U.S. Constitution. Boy did those guys have it backwards.


They came from countries where the the judge was often a nobleman and belonged either de-facto or de jure to the Executive.
That, of course, is not such a good idea.
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A system which allows unfettered legal assault of citizens is evil.

The American legal system is "evil"? Ok, it's official, the word "evil" no longer has any meaning, whatsoever.
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They came from countries where the the judge was often a nobleman and belonged either de-facto or de jure to the Executive.
That, of course, is not such a good idea.


And we live in a country where many states require judges to be popularly elected, and many do so with promises to be "tough on crime." Especially in southern rural areas, "hanging judges" are very popular.

Thus juries are a great idea to balance out the possibility that a judge may get overzealous in his desire to punish crime. Or the possibility that he may succumb to bribery. Or the possibility that he may just be a total asshole.

Juries ensure that one person does not have total control over another person's fate. Seems like a great idea to me.

Bon
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I think the best thing is the compromise we have in Germany - depending on which court, 1 judge with 2 jurors or 3 judges with 2 jurors.
Majority vote wins.
And I believe electing judges is a similarly disastrous idea as all-amateur juries because obviously a judge will try to be popular.
That is all too often quite incompatible with rendering justice, especially in high profile cases of which the public usually understands very little but has a strong opinion on anyway.
Judges need to be independent, and an elected judge can never be independent.
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Judges need to be independent, and an elected judge can never be independent.

We completely agree on this. I think popularly electing judges is about the stupidest thing in the American justice system. People are deluded into thinking they are better off if they can hold a judge "accountable" by making him run for reelection every few years, but it really hurts a judge's ability to rule based on the principles of justice, which sometimes conflict with popular opinion.

Justice is not defined by whatever sentiment is currently en vogue among the electorate.

Bon
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FFL,

Okay, here's my last word, and I'll try to make it brief before you have to go to commercial break. ;-)

I guess our fundamental difference of opinion comes down to how much 'offense' do we need in the war on terror. I believe that a strategy of hunkering down and only taking the 'clear shot' at the enemy is all but inviting terrorists. Muslim terrorists are a unique enemy, in that they don't have a 'state' with borders, and operate under the radar of virtually every intelligence operation in the world, since their hiding place is the entire Middle East, and parts of Africa and SE Asia.

They also don't have an economy or a population base that they must keep satisfied to avert revolt. This is what makes China deal with us, even though the government doesn't like us much at all. They have to feed their people, and trading with the U.S. is one of the best ways to do that.

Muslim terrorists, on the other hand, don't care if others starve. In fact, it gives them more deaths to blame on Western civilization, despite the fact that the Western world feeds its people quite efficiently, and would help feed theirs if given the chance. Muslim terrorists only want to destroy the non-Muslim world. Do you doubt this? There is over 30 years of well-documented terrorist activity that all point to this conclusion.

So, what's the answer? It's hard, but we've got to find a way to build countries up to withstand this cancer. Am I really calling Muslim extremism a cancer? YES. That is the only word I can think of that conveys the gravity of the situation. And we can expect strong resistance. Every school and hospital we build will be attacked by these sub-humans. Yes, I call them sub-humans, because what human would intentionally cause MORE starvation and suffering for their countrymen and women? What human would strap a bomb to themselves and blow up as many people as they could? (Incidentally, I think Timothy McVeigh, Ted Kaczynski and Eric Rudolph meet the definition of sub-human, too, so I'm not being discriminatory here.)

I actually support Kerry's ideal of bringing more 'international support' to Iraq, but probably not the way he intends. If France wants to help, great. If Germany wants to help, great. But just because they offer to help doesn't mean they can call the shots. For every insinuation they make that this war was for oil, we can show them an actual CONTRACT they had with Saddam. I think they think that ALL Middle Easterners are subhuman, because they didn't seem to mind Saddam killing and torturing them, as long as they were getting what they wanted. But they don't want to admit that.

Okay, so I'm now officially rambling. But my point that this is a war that needs offense to keep the terrorists on the defensive still stands. I would rather have them have to contend with our military in their back yard than have them deciding at their leisure which American landmark to attack next.

Dean

P.S. Raleigh-Durham is the best place I've ever lived, having lived in 5 states in the Northeast, Midwest, and South, and I don't intend to move anytime soon.
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We completely agree on this. I think popularly electing judges is about the stupidest thing in the American justice system. People are deluded into thinking they are better off if they can hold a judge "accountable" by making him run for reelection every few years, but it really hurts a judge's ability to rule based on the principles of justice, which sometimes conflict with popular opinion.

Excuse me, guys, but what the hell is so virtuous about appointed judges? An appointed judge can certainly be 'independent', but you guys are stuck in the theoretical zone here. What if the judge is 'independently' ignoring precedent? Are you just going to hope that all his/her rulings get overturned on appeal? After all, since they're now 'independent', you can't remove them. They're there for life. Yes, you can probably impeach them if things get truly egregious, but that's a dull instrument.

Contrary to your opinion, the electorate isn't just a collection of idiots. Sometimes the people really do know better than the 'experts', even when it comes to interpretation of the law. And accountability is a good thing. It keeps us from having some sort of elite ruling class, which is great if you're a member of it, but it kinda sucks when you're not. Incidentally, I have the same opinion of corporate boards and CEOs. I'd like them to have to earn their positions every year, not just stuff the board full of cronies, and write themselves ever-larger checks out of the corporate treasury. Whether it's judges or CEOs, absolute power corrupts absolutely.

Dean
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C-sections are more costly, of course, for the patient and their insurance companies. Ironically, the doctors also make more money by performing them. The patient, OTOH, not only has a longer recovery period and enhanced (5 times?) risk of other complications due to the procedure, but has a lifelong visible scar.

Just recently on CBS I watched a story in which they suggested that the increase in C-section deliveries might be fueled by the patients' request:

http://www.cbsnews.com/stories/2004/07/08/earlyshow/health/main628215.shtml

She notes, “In today's day and age, women are so busy; people are so busy. For me personally, I run my own business and I didn't have the luxury of maternity leave because there's no one to fill in for me when the office is closed. So knowing when I was going to have the baby was really a benefit.” ...Dr. Moritz says, “The major reasons for (elective) C-section is control. They want to know that they are going to come in at 9 on X date and have their baby. But there's a risk in all of this control, and the risk can be death. This is a major operation. It's not like going to the beauty salon, or getting your nails done, or getting a bikini wax. This is a big, big deal.”

I could hardly believe the implication that C-sections were on the increase at the request of women, as the great majority of women that I know who had C-sections had them at the suggestion, and in some cases, the insistence, of their physicians. It was my general understanding, and I could certainly be wrong, that it is the physicians who don't want to be woken in the middle of the night, or called in from their golf game for a delivery, who would rather schedule a C-section.

Regarding the risk of complications--I have twice almost died from adhesions, so I believe that any invasive abdominal surgery should be undertaken only when one has been informed of the possible risks. I was never informed that my surgery could result in the future possibility of adhesions.

2old
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It was my general understanding, and I could certainly be wrong, that it is the physicians who don't want to be woken in the middle of the night, or called in from their golf game for a delivery, who would rather schedule a C-section.

When my wife was delivering our twins, it was the other way around. My wife wanted the C-section, and the advice we were given was that it would be healthier for the babies to be delivered vaginally, if possible. However, the doctors said that it was possible for the first to be delivered vaginally, and for a complication to arise with the second child, necessitating a C-section. That's all my wife needed to hear to begin pushing (no pun intended) for a C-section. As it turned out, the issue was moot, because my daughter ran out of amniotic fluid before the due date, and they had to be delivered prematurely by C-section.

Sorry to hear about the adhesions. We were never counseled on that, either.

Dean
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Contrary to your opinion, the electorate isn't just a collection of idiots. Sometimes the people really do know better than the 'experts', even when it comes to interpretation of the law.


Certainly. Only in most cases, they don't.
I find that usually people prefer an experienced pro and not some first-tine amateur for a job, whether it's "medical treatment" or "doing your taxes", "Iraq post-war planning" (oops) or even "cleaning your pool".
Yet for some reason, when it's about interpreting the law and about weighing pro and con of evidence, judging the credibility of witnesses and about sifting through the rhetoric lawyerly BS somehow an amateur doing it for the first time is the preferred choice.
Like for some reason training and especially experience offer no benefit here.
The result of that is quite predictable. US trials before juries are circus shows with completely unpredictable results, in which rhetoric trumps facts most every day.
It is no coincidence that so many innocent people have been found to sit on death row.
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I could hardly believe the implication that C-sections were on the increase at the request of women, as the great majority of women that I know who had C-sections had them at the suggestion, and in some cases, the insistence, of their physicians. It was my general understanding, and I could certainly be wrong, that it is the physicians who don't want to be woken in the middle of the night, or called in from their golf game for a delivery, who would rather schedule a C-section.

Regarding the risk of complications--I have twice almost died from adhesions, so I believe that any invasive abdominal surgery should be undertaken only when one has been informed of the possible risks. I was never informed that my surgery could result in the future possibility of adhesions.

2old


In my experience (as an emergency medicine physician not an obstetrician), I have never witnessed or heard of a decision to perform a C-section based on the convenience of the physician. Of course, my direct experience in obstetrics has been limited to a few months of rotations. If this occurs, I think its a serious breach of ethics and the physician should lose their license. I HAVE talked to numerous women as patients who have decided to have a c-section themselves - mainly to avoid the trauma and pain of natural childbirth. As you point out, this trend could have negative consequences in the future.

wolvy

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Yet for some reason, when it's about interpreting the law and about weighing pro and con of evidence, judging the credibility of witnesses and about sifting through the rhetoric lawyerly BS somehow an amateur doing it for the first time is the preferred choice.

OK, so now we're talking about juries here. I thought we were talking about selection of judges. Either way, you're assuming that training in the law somehow is more valuable than common sense and life experience when judging credibility of others. I don't agree. Experts can be bamboozled just like average folks. Multiple degrees are no immunity against slick salesmanship.

Not only that, but a jury of 12 randomly selected people are unlikely to have the same preconceptions about ANY matter brought before them. Experts that have the same credentials are likely to agree on many things, and that can be a blind spot. Also, 'slick' lawyers will know how to take advantage of these blind spots, such as leading some of these 'experts' to believe that they know more than they actually do.

I believe that experience can be very valuable. I just happen to also believe that when it comes to deciding issues of fact (i.e., what and whom to believe), we should be looking at life experience, not legal experience.

Dean

P.S. It's also no coincidence that so many GUILTY people have been found to sit on death row.
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OK, so now we're talking about juries here. I thought we were talking about selection of judges. Either way, you're assuming that training in the law somehow is more valuable than common sense and life experience when judging credibility of others. I don't agree. Experts can be bamboozled just like average folks. Multiple degrees are no immunity against slick salesmanship.


When you're a professional and the target of the same slick salesmenship every single day it becomes old very fast.
I am sure that it still works occasionally and on the margins - but it has to be far more effective on a novice who has never heard a legal argument in his life before.

I believe that experience can be very valuable. I just happen to also believe that when it comes to deciding issues of fact (i.e., what and whom to believe), we should be looking at life experience, not legal experience.


Just how many people have you seen testify in court in your life?
Interrogation is a learnable skill. In normal life you almost never have opportunity or need to interrogate a stranger. Therefore you have no chance to learn that skill.
People behave themselves differently when they being interrogated in court then when you have a normal conversation with them and it's impossible to tell for a novice whether the witness is nervous because he's lying or just because he's in court.
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I'd never seen this kind of disclaimer before, and in seeing the segment, it was abundantly clear to me that Walters wasn't just making a standard disclaimer, but was clearly stating that she didn't agree with Stossel.

In his book, Stossel talks about the occasional story that would leave Barbara Walters colder than his other stories, and her reactions on air to that. So probably the reaction the other night was one of those cases.

R:
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FWIW, I am a future child neurologist (as in, I will be treating children with CP) and I fully support John Edwards, while admitting that there needs to be some tort reform and admitting that there are frivolous lawsuits and admitting that juries can sometimes side against the "facts" due to the human desire to "correct" a wrong, even when no one did anything "wrong".

But laywers and the courts still play a vital role in ensuring that people/corporations who ARE negligent get punished. There is no perfect system. But as a future physician who's income will be derived from treating patients, I am not happy with the direction health care is going, and both doctors AND patients will be worse off if we continue down the road advocated by the Bush administration.

I have heard there are regions of the country now where it is hard to find an OB to deliver a baby, and that this is because of the tremendous rate of malpractice suits associated with birth defects. Is this true? If it is, it is more than enough reason to reject John Edwards for a high office. Would we want to wind up excusing his invading Canada because invasions are sometimes necessary to serve as a deterrent against ACTUALLY dangerous countries? Or taking the economy down 3 notches because there are some things the government actually SHOULD spend money on?

If the cost for a system to stay on top of corporate wrongdoing is the elimination of OBs in some regions of the country, then the case for reform is made. IMHO.

R:
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Not a Libertarian folks, just doing the usual drive-by on a post that made the Best Of.

Thanks for the warning! Everybody, get your girl-children behind locked doors, Bonhoeffer's here :)

Moving beyond the particular scenario related by Stossel regarding the cerebral palsey situation, i must confess some apprehension at the rampant "anti-trial lawyer" mania that has gripped much of America in recent years.

I have read a few of Peter Huber's books about Junk Science in the courtroom. A very plausible case is made that
* The rate of production of new vaccines is drastically reduced because vaccines, administered to 100s of millions of people, produce NON-CAUSAL correlations with all sorts of problems that would have arisen among some of those 100 million anyway. For some reason, the tort system is not purusing truth, though, it is pursuing contingency fees, and so cases are fought not on their merit as truth or their merit as public good, but on their merit as plausibly winning a large enough contingency fee to blow away any conceivable costs associated with manufacturing the suit.
* Aspects of airplane and auto safety are degraded since trying anything new, changing anything old, leads to suability
* Beyond vaccines, valuable medicines are removed from the market by what turns out to be spurious suits.

Further, from my own experience, the class action suit industry is pretty much a scam. Piddly little problems are blown up, with a nearly worthless settlement to the injured class, for the purpose of being able to stand before the judge at the end and make a motion for the hundreds of thousands $ or million$ in fees.

Does anyone think people should not be able to sue negligent doctors or giant corporations who maliciously screw innocent consumers? Serious question.

What is the best proposed solution for the perceived harm that these trial lawyers are inflicting on America? Serious question.


I think a major answer to both these questions is "loser pays." IIRC, John Stoessel argues for this often as well. I would also support stronger laws against nonsense suits, IIRC, UK does have such laws, lawyers who bring in something too nonsensical either face criminal or at least severe civil liability.

(A secondary answer is a better legal standard for what constitutes scientific expert testimony.) With loser pays and no other changes, the economics of rolling the dice against the juicy target looks at least twice as bad.


R:
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I have never been placed on a jury and I've been called to duty a few times. As soon as either lawyer hears that I have a degree, and expecially when they hear I have a masters, you can tell that I will be knocked off the panel. They may continue to question me but they're mundane questions simply to drag it out so that it's not completely evident as to what question knocked me off the panel.

I have a PhD and was impaneled both times I got as far as being voir dired. Once criminal, once civil.

R:
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Our system is ALREADY ON FIRE!!! Many trial lawyers have the system by the shorthairs, and are incented financially to suck it dry of all lifeblood at the costs of those who are the most productive & responsible.

ooohhhh stoooppp! Your mixed metaphors are making me very hot!

R:
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I have heard there are regions of the country now where it is hard to find an OB to deliver a baby, and that this is because of the tremendous rate of malpractice suits associated with birth defects. Is this true? If it is, it is more than enough reason to reject John Edwards for a high office.

It IS true, and it's horrible what's going on. I freely admit that. Has Edwards contributed to that? For the sake of arguement I'll say sure. But Cheney/Bush are aligned as tightly, if not MORE tightly, with Energy/Oil in the US, and with direct Saudi investments. The effect on the enviroment due to US energy policy is also devestating. In Birmingham AL where I live, there are some kids with asthma who cannot go outside on certain days due to high ozone levels from car (and other) emissions. Isn't that also horrible? In addition, we could be completely free from dependency from foreign oil with minimal regulation. This dependency on foreign oil, especially Saudi oil, removes POWERFUL leverage we might otherwise have against middle eastern oil producing states to help us fight terrorism. But Cheney/Bush do not want to upset the status quo which provides substantial profits to their personal fortunes, and fortunes of their families and others who invest in US energy/oil (i.e. Saudis). This alignment costs us U.S. lives, ties one hand behind our back in the war on terror, as well as causes much more harm to the environment than is necessary. I'll take Edwards over Cheney any day. Call it the lesser of two evils if you must.

Now, I hastily constucted the above arguements, but my point is simply that given the choices available, each have potential substantial faults. To simply say that Edwards is unfit to serve as vice president because he is a trial lawyer is identical to saying that Cheney is unfit because he used to be the head of Halliburton, or that Bush is unfit solely based on his close alignment with US and Saudi oil interests.

Given the mess this country is in today, tort reform got pushed several notches down the ladder of importance.
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Of course, making the losing party pay is pointless if the losing party has no significant assets. One attorney told me that you can't, for instance, generally go after an attorney for filing a frivolous lawsuit. If the attorney can demonstrate that his client wanted to sue the attorney's pretty much protected from litigation.

The losing ATTORNEY pays. It is not the client that is admitted to the bar, and it is not the client that has the expertise to evaluate a case.

If the attorney has arranged with his client ahead of time that the client will cover costs of a loss, good for them.

And if a poor client comes to you with a good case, you represent him on a contingency basis, just as is now done. Its just your bar of "good case" has been set higher, since your costs if you lose will be somebody ELSE's $300/hr attorney, not just your own time.

Thats the way I would see it, from the cheap seats.

R:
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How about a system in which the loser pays the court costs up to the amount he spent on pursuing his cause of action?

I don't think it could be as simple as that. You could run very inexpensive attacks on very complicated issues where there are deep pockets, and you would be ahead if even 1 out of 30 managed to stick to the wall when you threw it.

I think judges already have a lot of developed systems for awarding lawyers fees in a broad range of cases. I would suggest just continuing that expertise over to the "loser pays" cases without any change.

So the losing attorney doesn't get a bill from either party to the suit, she gets a bill from the court.

R:
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The losing ATTORNEY pays. It is not the client that is admitted to the bar, and it is not the client that has the expertise to evaluate a case.

If the attorney has arranged with his client ahead of time that the client will cover costs of a loss, good for them.


Just chiming in for a second (found the board and the thread from the best of), but I think that this type of arrangement somewhat ignores the existing legal and ethical obligations of an attorney to his client.

An attorney is the client's advocate, and ultimately must follow the client's direction as to the course of action in a lawsuit. In most instances, the attorney is delegated wide discretion in choosing the path of a suit - but with respect to some matters (particularly whether to terminate, settle, or continue to prosecute a lawsuit) the client is the ultimate decision-maker.

That means that an attorney cannot predict at the outset of a lawsuit whether the client will direct a course of action that manifestly increases the likelihood of loss. Indeed, typically an attorney has to decide whether to decline or accept a representation, and on what terms, well before he has all of the information necessary to fully evaluate the case.

The problem that I have with these types of proposals as an effort to thwart frivolous lawsuits is that they apply to all lawsuits - not just frivolous ones. A loser-pays system would result in a lot fewer lawsuits - both frivolous and meritorious. If you believe that fewer lawsuits is a desirable outcome in and of itself, it might be a beneficial policy. But if you believe that meritorious lawsuits are beneficial, and only frivolous lawsuits are problematic, it might better to adopt a policy change that only affects frivolous lawsuits.

Albaby
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My guess is that people like John Edwards will never have to look hard to find a doctor, but I'd love it if there were some poetic justice in the world in this case.<?i>

You might enjoy this from a USA Today article: http://www.usatoday.com/news/nation/2004-06-13-med-malpractice_x.htm


In New Hampshire, Tim Coughlin, president of the New Hampshire Trial Lawyers Association, recalls an angry confrontation last fall with RickMiller, a neurosurgeon from Portsmouth, N.H. Miller told Coughlin, 40, that because Coughlin lobbied against limits on malpractice suits, Miller would refuse him treatment.

...

"He's known as the best neurosurgeon on the Sea Coast. If I had a brain situation, I would hope he would operate on me regardless of my position" on malpractice suits. "But he's told me he wouldn't."


R:
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Regarding Mr. Edwards specifically, he strikes me as a man of high integrity. Moreso than many politicians. Still, it is impossible for anyone to fully evaluate how he went about winning those trials without examining all of the evidence he had at his disposal and further examining the record of the trials themselves to see how he actually conducted himself. As we do not have access to such comprehensive information, i'd say we are at an impasse.

I agree with you in the sense that I think most trial lawyers are doing what they are "supposed" to do. They vigorously represent their clients interests. They do not let "truth" get in the way of a vigourous case, that would actually be malpractice on their part. Scott Thurow is a lawyer, read some of his books and/or see the movies to get a flavor of what it is that lawyers do and do not do.

But even within that warped view of right and wrong (that winning is the ethical thing to do), there are still choices a lawyer could make. In this system SOME lawyer is going to put Ob Gyns out of a state, or make vaginal delivery a larger risk for the doctor than it ever was for the mother or the child.

But did it have to be John Edwards? If some S.S. colonel tells you he was just doing his job, does that carry that much weight with you when you go in to see the marvelous collection of art he took from the victims of the reich before he put them on the train? And do you then want him as vice president of your country?

I'm sure he's a very nice guy who didn't think he was doing anything wrong. I don't think he should be criminally or even civilly prosecuted for what he did. But I'd like to think that the requirements for wanting someone for V.P. are a little higher than "they avoided indictment."

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They do not let "truth" get in the way of a vigourous case, that would actually be malpractice on their part.

Ralph, it can't be the attorney's job to decide what is truth. Tha tis the job for the judge and jury, hence the word "verdict".

An attorney's job is to make a compelling case. The plaintiff's attorney in a civil case has the job to make the best case they possibly can using all the facts and testimony they can gather to support their case. They aren't supposd to present a balanced view of their position. Balance os brought to the process by the defense attorney. It would be a bad defense attorney indeed who allowed unsubstantiated claims and junk science go unchallenged in the courtroom.

If there is a scapegoat in the tort system it is the juries themselves. Far too many of them try to use their position to "right" a "wrong" rather than to decide the truth.

Quick example: My father actually sat on a jury for a medical malpractice case. There was a surgeon had done everything correctly according to his training and standard medical practice, but the patient had had abnormal biology and suffered an injury. The doctor immediately recognized the injury and called in the hospital specialist to correct the damage. The specialist corrected the damage and saved the patients life, but in the process left a wider scar and caused a longer time for recovery.

The woman sued for medical expenses (reasonable) and pain and suffering for the prolonged recovery and permanent disfigurement (on her abdomen). Requested price tag? $10M.

Okay, so during jury deliberations, over half the jurors wanted to give the woman the $10M. Why? Well, the justification they gave was that the insurance company was rich and could afford it and it would make a huge difference in the woman's life. Not "Because she really suffered"...not "because her abdomen is scarred"...but "Because they can afford it and the woman will make out".

My father, being the stubborn man that he is, refused to go along with it. He agreed with compensating for the medical expenses and lost wages, but held firm against the pain and suffering. Eventually, the rest of the jury, in an effort to eventually see their families again, relented and voted my father's way.

That isn't to highlight something special about my father, it's to highlight where I think a lot of jurors come from in these cases. Again, the problem isn't the lawyers, it's the jury system.

Steve
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agree with you in the sense that I think most trial lawyers are doing what they are "supposed" to do. They vigorously represent their clients interests. They do not let "truth" get in the way of a vigorous case, that would actually be malpractice on their part. Scott Turow is a lawyer, read some of his books and/or see the movies to get a flavor of what it is that lawyers do and do not do.

Turow, though, is referring to criminal defense attorneys. And he has a point. What protects us from the jackbooted thugs breaking down our doors in the middle of the night is a system of law, one that requires the government to prove its case beyond a reasonable doubt. And that system grants the accused certain rights, among them legal representation. The defense lawyer's job is to force the prosecution to abide by the rules and prove its case.

The prosecution's job is to enforce justice, not to get a conviction.

In a civil case the stakes are different. An attorney may be able to use dishonesty to further his client's case, but it's hard to see how the greater good is served by his doing so. You may be right that the legal system encourages or even requires this course of action. But if that were the case it would seem that a person of integrity would avoid serving such a system.

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An attorney is the client's advocate, and ultimately must follow the client's direction as to the course of action in a lawsuit.

In many cases the suit is filed at the urging of the attorney, the amount of damages asked for is decided by the attorney, and the client has almost no involvement in the case much less provides any direction.

I mentioned in an earlier post that I thought punishment should be reserved to criminal proceedings. I didn't get any responses to that idea so I'm not sure if anyone else agrees or not, but the question of who the attorney is really representing is many times quite clear by taking a close look at the results of the lawsuit.

I realize that this is only one little bit of anecdotal evidence but…

I was an involuntary party in a class action lawsuit against a cellular phone company. The suit was filed by trial attorneys. I say involuntary because I didn't have to ask to be included in the class, I actually would have had to formally request, in writing, to both the phone company and the attorneys, to be excluded. The cost of a couple envelopes and stamps may not be much but why should I have to use any of my time or money to not be part of something I had already taken care of by switching providers.

The accusation against the company was that they had lied about their services and overcharged us, therefore, we didn't get what we paid for. The resolution of the case was a settlement in which the company never admitted wrongdoing, I received a $15.00 voucher for this companies services (remember I was no longer using this company so the voucher was worthless), and the lawyers received several million dollars.

Fade to three years later…

I was a voluntary party in a class action lawsuit against a finance company. The suit was filed by the office of the Attorney General of my state. I say voluntary because I had to approve my inclusion in the class by returning a signed form in a postage paid envelope.

The accusation against the company was that they had lied about their services and overcharged us, therefore, we didn't get what we paid for (sound familiar?). The resolution of the case was a settlement in which the company had to admit wrongdoing and change their practices, I received a check for over $400.00, and the Attorney General took home his normal biweekly paycheck.

Now, you tell me. Who was representing their client?

The Barbarian
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In many cases the suit is filed at the urging of the attorney, the amount of damages asked for is decided by the attorney, and the client has almost no involvement in the case much less provides any direction.

Class actions present unusual difficulties - but there is usually a lead plaintiff(s), who ultimately serves as the client in the case. The lawyer has an ethical obligation to that client.

I don't defend the actions of attorneys who solicit marginal cases to enrich themselves. What I equally fear, though, is proposals that will alter the legal system for all cases simply to address via procedural means what is ultimately a substantive question.

Do class action attorneys earn too high fees? Then pass price controls. I personally disagree with that, since I tend to be more libertarian by bent (and although I'm not a litigator, I am a lawyer, so resist the notion of government regulation of the prices my colleagues can charge). Even better, eliminate the laws prohibiting champertry and maintenance, and thus allow third parties (other than attorneys) to assume the financing and risk arbitrage roles that make up part of the economic value of those fees.

Albaby
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I agree, their needs to be reform, the system is broke. But is it Barry Sheck's fault that OJ was found not-guilty? Do we simply denigrate all defense attorneys because sometimes guilty people are found innocent for whatever reason?

Maybe not. But there is probably no reason to put them in the whitehouse either.

R:
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Why couldn't I say that George Bush is so closely aligned with energy interests that pollute the environment that he is unfit to be president?

Bush has not made a living by exploiting the brokenness of the energy system to the great detriment and discouragement of people who are trying to do a fairly demanding job.

Or was it a rhetorical question?

R:
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I think it's very ironic to see a criticism on the Libertarian board of someone using his talents to earn himself millions of dollars, a paradigm that is surely the ultimate example of the free market working as the good lord intended.

Defendants come into court and "consent" to pay the fines imposed on them under the threat of police with guns and chokeholds coming to get them.

A trial lawyer making money by hauling doctors into court and making them pay under the threat of the police is hardly the libertarian paradigm you suggest.

R:
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Do class action attorneys earn too high fees? Then pass price controls. I personally disagree with that, since I tend to be more libertarian by bent (and although I'm not a litigator, I am a lawyer, so resist the notion of government regulation of the prices my colleagues can charge).


I, too, disagree with price controls, for the same “libertarian” reasons as you. But, how do you keep an attorney from looking out for his own wallet when his paycheck is directly related to the size of the damage award? Isn't he just as likely to push for the $10 million award over the $1 million award because of his own selfish interests?

I don't have anything against lawyers making good money, but, one of the reasons I like the idea of punitive measures being left to criminal courts is that the attorney takes home the same amount of money in either case. The other reason is that I don't think a person or corporation should be punished unless they have done something criminal.

The barbarian
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Has Edwards contributed to that? For the sake of arguement I'll say sure. But Cheney/Bush are aligned as tightly, if not MORE tightly, with Energy/Oil in the US, and with direct Saudi investments. The effect on the enviroment due to US energy policy is also devestating. In Birmingham AL where I live, there are some kids with asthma who cannot go outside on certain days due to high ozone levels from car (and other) emissions. Isn't that also horrible?

Hmmm. Not going outside certain days compared to dying in childbirth because lawyers have sued all the OBs out of town (ironically for the harm they were doing). Might I suggest it is not even close?

But Cheney/Bush do not want to upset the status quo which provides substantial profits to their personal fortunes, and fortunes of their families and others who invest in US energy/oil (i.e. Saudis).

You are taking the same drugs that Michael Moore is taking, indeed, I would bet dollars to donuts he is your "deep throat" on this one. Pres. Bush is worth between $9 and $27 Million, which is chump change and I would expect in the same range as Clinton and Gore and is less than Edwards and Kerry. So if you are looking for a link to personal enrichment, uhhm, follow the money.

Bushs talk to prince bandar very suspicious, until you consider Bandar is an ambassador in Washington and Bushs were or are presidents.

But its a free country. You're quite free to be wrong and vote that way. But why do you need to excuse the harm done by tort law in order to justify making that choice?

Now, I hastily constucted the above arguements, but my point is simply that given the choices available, each have potential substantial faults.

Indeed. May I suggest you slow down and prioritize? Especially when Asthma-boy winds up not having a doctor to go to, or can't afford it, or has to wait 6 months for an appointment, how much is that going to help him?

Think of it as triage.

R:
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I, too, disagree with price controls, for the same “libertarian” reasons as you. But, how do you keep an attorney from looking out for his own wallet when his paycheck is directly related to the size of the damage award? Isn't he just as likely to push for the $10 million award over the $1 million award because of his own selfish interests?

You don't. It's no different than any other transaction where someone takes a percentage of the matter instead of a flat fee.

For example, here in Florida, a real estate broker will typically get 3% of the purchase price as their commission. They'll have an incentive to get the highest price for my house, even if it is to the detriment of the purchaser. So do for folks who get a piece of the gross, a percentage finder's fee, or any other compensation that is based on the size of the transaction. You try to align the attorney's interests with that of his client.

It should be noted that there's nothing prohibiting defendants - insurance companies or doctors - from negotiating similar contractual arrangements with their own counsel, so that they pay nothing if they lose, but pay very large amounts if they win. They don't do so, of course, because they typically have enough resources and enough claims to avoid having to pay for those financing and risk-allocating services.

The lawyer is providing a service to his client - not the opposing party. That client is perfectly free to hire a lawyer based on a flat, hourly fee instead of a contingency fee, should they so choose.

Albaby
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Hi Albaby,

An attorney is the client's advocate, and ultimately must follow the client's direction as to the course of action in a lawsuit. In most instances, the attorney is delegated wide discretion in choosing the path of a suit - but with respect to some matters (particularly whether to terminate, settle, or continue to prosecute a lawsuit) the client is the ultimate decision-maker.

Understood, however placing the responsibility at the feet of the trained attorney puts the pressure of diligence to bear where it is best shouldered. Without that responsibility, as is plainly obvious, the system spins rampantly into abuse.

An attorney considering a client with an unclear or questionable case would merely need to ensure that client had appropriate resources to cover the indemnification of the attorney (should he ask it.)

Without this, it's the innocent accused that bear the burden.


The problem that I have with these types of proposals as an effort to thwart frivolous lawsuits is that they apply to all lawsuits - not just frivolous ones.

Since frivolous lawsuits (TRULY frivolous... as in economically & socially wasteful & abusive... not just those that are "frivolous" according to current legal standards, which are ridiculously accomodating to abuse) are NOT difficult to cull when burden of analysis is properly placed, it is CRITICAL that ALL potential suits face the diligence in advance at the levels trained to identify the real facts earliest.


A loser-pays system would result in a lot fewer lawsuits - both frivolous and meritorious. If you believe that fewer lawsuits is a desirable outcome in and of itself, it might be a beneficial policy.

"Meritorious" is relative to the costs to society. If "winnable" lawsuits are avoided because the burden of analysis is properly placed, and the competitive free market of trained attorneys determine that they don't see it being worth the real risks at hand, then THAT "potentially meritorious" case was BEST to be avoided in advance.

Again... failing to have the proper analysis in advance withthe proper burden shouldered is what is destroying our current system's effectiveness.


But if you believe that meritorious lawsuits are beneficial, and only frivolous lawsuits are problematic, it might better to adopt a policy change that only affects frivolous lawsuits.

TRULY meritorious suits will not suffer with a well structured "loser attorney pays" system. In fact, it is quite arguable that such a structure would result in a purer legal system that would give greater focus and resource to VALID suits!

Cheers,
Dave
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Interesting how this thread has broken down into yet another debate about Libertarianism. Guess that's the point of the board, eh?

BTW, didn't see it mentioned but Stossel is a *staunch* Libertarian!
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An attorney is the client's advocate, and ultimately must follow the client's direction as to the course of action in a lawsuit. In most instances, the attorney is delegated wide discretion in choosing the path of a suit - but with respect to some matters (particularly whether to terminate, settle, or continue to prosecute a lawsuit) the client is the ultimate decision-maker.

Loser pays simply shifts the cost-benefit analysis a lawyer already does as part of determining whether to take a suit on hourly fees, contingency fees, whether to require client to pay experts and consultants or whether the lawyer will cover that, etc. Am I missing something?

The problem that I have with these types of proposals as an effort to thwart frivolous lawsuits is that they apply to all lawsuits - not just frivolous ones. A loser-pays system would result in a lot fewer lawsuits - both frivolous and meritorious.

Lawsuits are EXPENSIVE, and they are not optional for at least one of the parties involved. The idea that every little problem should be beaten to death with the elephant gun of litigation is not a reasonable one. If your insurance company is really sure that the crack in my sidewalk was my negligence, and my insurance company is really sure it is not, then if we are talking about a $500 medical bill it is economically insane to think the answer should be battled out in court.

Would you even imagine denying the existence of "nuisance" suits? Where the attorney is counting on the non-attorney victim to figure out, correctly, that it just makes sense to pay a few $1000 than to fight the case? Well what if old nuisance-boy had to face an attorney that told the DEFENDANT: "this guy is estupido, I'll represent you and take my payment from the court when we win." Essentially, the defendant can now get an attorney on contingency as well.

It seems like a step in the right direction.

But if you believe that meritorious lawsuits are beneficial, and only frivolous lawsuits are problematic, it might better to adopt a policy change that only affects frivolous lawsuits.

First, I would LOVE to see reforms that differentially repress frivolous lawsuits over valid ones. Any ideas?

Second, FOR SURE it is more valuable to suppress frivolous lawsuits at the expense of some meritorious suits than it is to allow frivolous lawsuits so that a few extra meritorious suits can sneak through. Not every wrong can afford the extraordinarily expensive process of litigation to be righted.

Thanks,
R@lph
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Quick example: My father actually sat on a jury for a medical malpractice case. There was a surgeon had done everything correctly according to his training and standard medical practice, but the patient had had abnormal biology and suffered an injury. The doctor immediately recognized the injury and called in the hospital specialist to correct the damage. The specialist corrected the damage and saved the patients life, but in the process left a wider scar and caused a longer time for recovery.

The woman sued for medical expenses (reasonable) and pain and suffering for the prolonged recovery and permanent disfigurement (on her abdomen). Requested price tag? $10M.

Okay, so during jury deliberations, over half the jurors wanted to give the woman the $10M. Why? Well, the justification they gave was that the insurance company was rich and could afford it and it would make a huge difference in the woman's life. Not "Because she really suffered"...not "because her abdomen is scarred"...but "Because they can afford it and the woman will make out".

My father, being the stubborn man that he is, refused to go along with it. He agreed with compensating for the medical expenses and lost wages, but held firm against the pain and suffering. Eventually, the rest of the jury, in an effort to eventually see their families again, relented and voted my father's way.


I'm confused. If the doctors didn't do anything wrong, why should the woman get money for medical bills and lost wages?

Also, in civil cases, I didn't think a unanimous jury was required, so how did your father have this impact?

Thanks
R:
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They do not let "truth" get in the way of a vigourous case, that would actually be malpractice on their part.

Ralph, it can't be the attorney's job to decide what is truth. Tha tis the job for the judge and jury, hence the word "verdict".


O.K.

But no one made John Edwards TAKE all those cases. That was a pure matter of voluntary choice on his part.

There's a lot of stuff that's legal that I won't do because I think it is wrong. Anybody else out there in this same boat as me?

R:
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That client is perfectly free to hire a lawyer based on a flat, hourly fee instead of a contingency fee, should they so choose.

Does anyone actually do that?

Maybe it just comes down to incentives to do the right thing. If I go to an attorney and say “I sat on a tack and the doctor that stitched me up accidentally used dental floss and now I have a huge minty fresh scar on my right cheek and I will pay you $2,000 to sue him for $10,000 to pay a plastic surgeon to make my butt as smooth as a baby's bottom again”, there is no dis-incentive for the lawyer to not make a counter offer to go for $10 million, on contingency, to “compensate” me for my pain and suffering and the fact that I will never be able to floss again without thinking of my right cheek. And when I hear that I could become a millionaire there is no dis-incentive for me to not agree even though I now will be paying the attorney several million dollars.

I hate the idea of the government legislating incentives or dis-incentives for us to do what they think is the right thing. But where, in the current civil court system, is the incentive to do what is right? Or, do we just leave that totally to each individuals morals?

The Barbarian
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Class actions present unusual difficulties - but there is usually a lead plaintiff(s), who ultimately serves as the client in the case. The lawyer has an ethical obligation to that client.

I believe this is what we amateurs refer to as a "legal fiction" or a "fig leaf."

Some other things you might want to ponder from the hoi polloi:

We don't read the labels on the snowmobile gasoline tank telling us to put out the cigarette before refueling

We don't read the license agreements when we register for web pages or install software, even though we do check the boxes to get the software

I look at the same three or four lawfirms simultaenously filing suits against small publicly traded companies whenever there stock goes down, competing to be certified as the class action attorney, so they can extort the insurance company that the small company must be paying as a "cost of doing business," and I wonder: is the good being served public or private?

R:
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Especially when Asthma-boy winds up not having a doctor to go to, or can't afford it, or has to wait 6 months for an appointment, how much is that going to help him?

"Asthma-boy" represents the harm to the envirnment done by pollution of all sorts. Soon it won't just be kids with asthma who have to move out of the cities in order to breath normally. I wasn't comparing "not going outside" to trials. Many more people will be injured or die early due to unrestrained and unregulated energy production and consumption in the country, in the future, than will die because there are fewer doctors to deliver babies. So on a "death scale" I still take Edwards over Bush. But I'm not trying to make a direct comparison, and I said so. I merely point out that given a spectrum of issues, Edwards being a trial lawyer doesn't bother me, and I am ENTIRELLY for tort reform. ESPECIALLY since juries in Alabama where I live are notorious for OUTRAGEOUS awards. It prevents businesses from wanted to do business here.

Pres. Bush is worth between $9 and $27 Million, which is chump change and I would expect in the same range as Clinton and Gore and is less than Edwards and Kerry. So if you are looking for a link to personal enrichment, uhhm, follow the money.

Without energy interests contributing to the campaigns of Bush and Cheney, they likely would not be in office. You can't deny that energy/oil companies are firmly on Bush's side. It doesn't matter whether Bush ever had previous ties to oil or not. Bush may be beholden to oil, Edwards to trial lawyers. Pick your poison. Which is worse? Matter of opinion. That's all I am trying to say. Add in issues such as religious freedom, abortion, gay rights, Iraq, death penalty, etc, and tort reform is just one of many many very important issues. If tort reform is your single issue, then I understand. Given the range of important issues involved in this election, tort reform has slid very far down the list.

Remember, I started medical school in 1996. I've been thinking about the issue of litigation for a while, and I have friends who have been sued. While I am not at the point where I can be sued yet, I am closer to the issue that not. I am fully aware that I will be in the crosshairs very soon in my career. Again, tort reform is a VERY IMPORTANT issue, and it's ranks high on my list. It's an issue that will directly affect my pocketbook, and my mental health. I know that. EVEN SO, I support John Edwards for all his other positions. In addition, the reforms proposed by Bush are vulgar. One proposal at one time was to cap awards at $250,000. That's not an appropriate solution.

Also consider that I fully expect and hope to be in that 1% that Kerry/Edwards is targeting for tax rollbacks. I say bring em on. I can get a new car every two years instead of every one year for the sake of the country.

FFL
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Understood, however placing the responsibility at the feet of the trained attorney puts the pressure of diligence to bear where it is best shouldered. Without that responsibility, as is plainly obvious, the system spins rampantly into abuse.

An attorney considering a client with an unclear or questionable case would merely need to ensure that client had appropriate resources to cover the indemnification of the attorney (should he ask it.)


Again, that skews the traditional lawyer-client relationship. The lawyer is not an adversary to his client (or a potential client). It's not the lawyer's job to assume the role of the jury beyond the role of the jury.

Remember, we are (by and large) talking about lawsuits where the plaintiffs are winning. These are cases where a plaintiff presents a claim to an impartial jury, presided over by a judge, where the defendant has a fair opportunity to present a rebutting case, where the jury conducts its deliberations and has rendered a verdict in favor of the plaintiff. It is not the role of the plaintiff's lawyer to prevent those cases from resulting in a damage award.

As an aside, the attorney already bears much of the economic burden in unclear or questionable cases. Prosecuting a lawsuit requires the investment of a great deal of time and resources on the attorney's part. If the lawsuit loses, the attorney is out of luck.

Since frivolous lawsuits (TRULY frivolous... as in economically & socially wasteful & abusive... not just those that are "frivolous" according to current legal standards, which are ridiculously accomodating to abuse) are NOT difficult to cull when burden of analysis is properly placed, it is CRITICAL that ALL potential suits face the diligence in advance at the levels trained to identify the real facts earliest.

This, I think, is the heart of the disagreement between advocates of litigation reform and the opponents. The "burden of analysis" is the trial, folks. That's the system that we have to separate out "frivolous" lawsuits. How on earth do you expect a claim that is capable of making it through the entire system - pretrial analysis by a judge, a full trial with opposing counsel and rebutting evidence, and review by an impartial jury - to be "culled" by a single attorney sitting in his office before any formal discovery has taken place?

Most of the complaints about the system deal with cases that win. It would be malpractice....indeed, a violation of ethical duties....for an attorney to prevent a client from pursuing those lawsuits.

What "tort reform" proponents want is for certain, very specific types of lawsuits not to win any more. Fine. Change the duty of care. Change the substantive standards. If you don't want strict products liability, change strict products liability. Amend the substantive law, rather than the procedural rules.

I'll dispute this last one as well:

TRULY meritorious suits will not suffer with a well structured "loser attorney pays" system. In fact, it is quite arguable that such a structure would result in a purer legal system that would give greater focus and resource to VALID suits!

I cannot see how this could be. All valid lawsuits have a chance at losing. Indeed, the very premise of this discussion is that the various and sundry doctors that are losing these lawsuits had VALID defenses, but still lost. Lawsuits, by their very nature, exist when there is mutual disagreement between the parties as to their rights and responsibilities.

Plus, how does "loser pays" help the current system, when the primary problem is not that plaintiffs are losing these lawsuits, but winning them? The only way it helps is if you discourage lawsuits in general by the chilling effect of paying your opponents' attorneys fees.

Albaby
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First, I would LOVE to see reforms that differentially repress frivolous lawsuits over valid ones. Any ideas?

Second, FOR SURE it is more valuable to suppress frivolous lawsuits at the expense of some meritorious suits than it is to allow frivolous lawsuits so that a few extra meritorious suits can sneak through. Not every wrong can afford the extraordinarily expensive process of litigation to be righted.


Sure. The easiest one is to allow a party that feels that a lawsuit has been filed frivolously against them to move for attorney's fees. For example, how about this one:

http://www.law.cornell.edu/rules/frcp/Rule11.htm

That's a link to Federal Rule of Civil Procedure Rule 11, which allows a court to impose monetary sanctions, payable to either the opposing party or the court, when a frivolous pleading is filed.

The real problem is that these lawsuits aren't patently frivolous. They are lawsuits about which reasonable minds might disagree over the proper outcome. The purpose of the court system is not as a claims processing clearinghouse when the parties all know their rights and responsibilities. It's a place where parties litigate disputes.

A claim doesn't always have to win to have been a valid and colorable dispute. Nor does a jury verdict have to be right for a claim to still have been a valid argument to make.

In other words, the court system is where you bring claims to be evaluated. Weak claims lose in the courts all the time. What "tort reform" advocates seem to want is some type of "pre-court" court system, where claims are evaluated before they are evaluated in court. But the litigation system is where claims are evaluated, tested, and either found wanting or meritorious.

You can't have a rule where a party has to be 100%, absolutely certain that they're correct in order to enter the courthouse door - because otherwise there's no point in having a courthouse. Either the plaintiff or the defendant has to be a little unsure of their position.

As to your second point, it reflects a certain world-view of the court system. If you believe that most claims are frivolous, then making it harder to file claims might be beneficial. If you believe that most claims are meritorious, then it's hard to support that.

Actually, it's important to remember that the cases that go to court are the ones that there's a material dispute over who might win based on current rules. Shift the burdens and rules in favor of defendants globally, and you might see many of the cases that are currently settled ("Of course we have to pay for amputating the wrong leg") might now be economically viable to fight out in court ("Perhaps we did remove the wrong leg, but can you really afford to risk losing your house to pay our legal bills if our lawyer is better than yours?").

Albaby
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This, I think, is the heart of the disagreement between advocates of litigation reform and the opponents. The "burden of analysis" is the trial, folks. That's the system that we have to separate out "frivolous" lawsuits. How on earth do you expect a claim that is capable of making it through the entire system - pretrial analysis by a judge, a full trial with opposing counsel and rebutting evidence, and review by an impartial jury - to be "culled" by a single attorney sitting in his office before any formal discovery has taken place?

Actually I do not think that this is the heart of the disagreement at all. Whether you believe an attorney can make an intelligent determination as to the winnability of a case before he tries it or not is besides the point.

The heart of the disagreement is over who should PAY for this extraordinarily expensive "burden of the anlysis."

Not everything "should" be analyzed at this great cost, and people need to be thinking about that cost when making decisions about pursuing it.

Now, Plaintiff might be made whole if she pushes for this expensive process and wins, but Defendant will be out many tens of thousands of $ of costs if HE prevails. B.S. WHOEVER prevails should be made whole REGARDLESS of whether they are Plaintiff or Defendant.

That's my reasoning for it, anyway.

R:
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albaby1, this question is for you:

I cannot see how this could be. All valid lawsuits have a chance at losing. Indeed, the very premise of this discussion is that the various and sundry doctors that are losing these lawsuits had VALID defenses, but still lost. Lawsuits, by their very nature, exist when there is mutual disagreement between the parties as to their rights and responsibilities.

This seems key to me. Why cannot an Ob Gyn offer a contract to pregnant women that spells out what he offers for what fee? If he does not wish to offer open-ended insurance against CP for example, why cannot he specifically exclude this in his contract?

Thanks,
R:
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The heart of the disagreement is over who should PAY for this extraordinarily expensive "burden of the anlysis."

Not everything "should" be analyzed at this great cost, and people need to be thinking about that cost when making decisions about pursuing it.

Now, Plaintiff might be made whole if she pushes for this expensive process and wins, but Defendant will be out many tens of thousands of $ of costs if HE prevails. B.S. WHOEVER prevails should be made whole REGARDLESS of whether they are Plaintiff or Defendant.

That's my reasoning for it, anyway.


Interesting perspective - but most of the discussion I've seen about the current "litigation crisis" deals with the economic impacts of cases in which the plaintiffs are winning very large damage awards. In other words, exactly the sort of situation which would merit a lengthy examination of the issues involved. What's the public policy benefit for adding even more expense onto these losing defendants?

Again, what I find interesting is that there's very little call for "loser pays" as the legal default in other areas of the law - contracts, real estate, will contests, custody battles, patent disputes, trademark infringements, etc. - where the economic actors are equally likely to be on either side of the "v."

Both of these points, taken together, suggests that impact of "loser pays" is intended to create a risk profile to potential plaintiffs that discourages legitimate, meritorious lawsuits. Remember, a plaintiff that brings a lawsuit and loses is undergoing their own costs of an expensive process, and is typically out many thousands and thousands of dolalrs as well. When the plaintiff has negotiated a contingency fee with their lawyer, it is the lawyer that bears that cost.

Albaby
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Albaby,

What you're missing is that the REAL issue is that the current system forces the burden of a "free attack ticket" upon the innocent defendants who are wrongfully attacked.

If you are attacked and fail to agree to the financial injury, up front, without assistance, to defend yourself... the current system is virtually guaranteed to find against you.

THIS is, in essence, a "gun to the temple" of those that the system is, theoretically, supposed to be set up to protect!

Just because litigating attorneys are bringing suits & getting awards or settlement DOES NOT mean that the case was meritorious. The burden of cost is such that it is simply often cheaper to concede or settle than to "do what is right,".... and frankly, that is wrong.

The system has morphed into a perversion of justice!

Having the innocent-accused bear the burden is wrong for several reasons;
A) They are the least qualified to do so,
B) They have the least control or discretion in the matter,
C) Theoretically our system is intended to protect the innocent at the expense of the guilty,
D) It's simply wrong justice!

A fair & just system CANNOT freely allow penalty or injury upon those who do not deserve it as a standard course of process.

I don't know if you understood this issue about the system in it's current state earlier in this thread or not...

You SEEM to be defending the ability of litigation to force innocent defendants into financial burden prior to any proof of their guilt or liability... purportedly because the benefit of letting ALL potentially winnable lawsuits be prosecuted, regardless of viability.

Is this, in fact, your position?

Cheers,
Dave
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A little out of order here....

What you're missing is that the REAL issue is that the current system forces the burden of a "free attack ticket" upon the innocent defendants who are wrongfully attacked.

If you are attacked and fail to agree to the financial injury, up front, without assistance, to defend yourself... the current system is virtually guaranteed to find against you.


There's a flip side to that, though. A defendant can harm an innocent plaintiff, and the plaintiff cannot get himself made whole without expending considerable resources just to get back to his prior position.

You SEEM to be defending the ability of litigation to force innocent defendants into financial burden prior to any proof of their guilt or liability... purportedly because the benefit of letting ALL potentially winnable lawsuits be prosecuted, regardless of viability.

Is this, in fact, your position?


Nope. My argument is that civil court is a dispute resolution process. Right now we allow each participant to choose for themselves the degree of resources they want to devote in participating in that process. I don't want to force a defendant who loses to bear the litigation expenses that he didn't choose to incur, nor a plaintiff in the same situation.

Remember, not all litigation is about the fact of liability - sometimes that's even stipulated - but can be about the degree of damages. The plaintiff knows he's going to win the suit. Do you want to hand his attorney a blank check to run up as high a bill as he possibly can, knowing the defendant has to pay for it?

Just because litigating attorneys are bringing suits & getting awards or settlement DOES NOT mean that the case was meritorious. The burden of cost is such that it is simply often cheaper to concede or settle than to "do what is right,".... and frankly, that is wrong.

There may be confusion about "meritorious" and "frivolous." You have the right to go to court and advance an argument or case, even if you're not certain that you're going to win. Your case is colorable, and therefore not frivolous, even if you don't ultimately win.

But I don't see how you can argue that cases are not meritorious, or even frivolous, in instances where they go all the way to a jury verdict in favor of a plaintiff? Almost by definition, they've gone through the only legal process by which the merits of a case are weighed, and been found to be meritorious....

Albaby
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There's a flip side to that, though. A defendant can harm an innocent plaintiff, and the plaintiff cannot get himself made whole without expending considerable resources just to get back to his prior position.

OK... so you want to protect the ability of an innocent plaintiff to attack at no cost. Fine!
HOW do you propose to protect the ability of an innocent defendant to defend at no cost?

In the current status, where you're doomed as a defendant UNTIL you expend significant resource, there is a FINANCIAL PRESSURE in favor of wasteful (let's abandon "frivolous" as you're clearly falling into legal definition rather than pragmatic english) litigation. This can ONLY ultimately benefit attorneys, since they are the only obvious threshold alternative to forcing innocent defendants to shoulder the burden.

OBVIOUSLY the burden of the costs HAVE to fall somewhere!
The innocently accused is the wrong place,
The innocently injured is the wrong place,
Tax-payers are the wrong place.

The only logical place is prior to initiation with a threshold process that establishes responsibility to those capable & qualified to determine the merit AGAINST SUFFICIENT COSTS.

Clearly SOMEONE has to determine if a suit is strong enough to proceed. This is ALREADY done by attorneys. Giving attorneys a more stringent threshold will OBVIOUSLY quell the gravy-train... but how can it be any fairer?


I don't want to force a defendant who loses to bear the litigation expenses that he didn't choose to incur, nor a plaintiff in the same situation.

You've got this oddly twisted...

If a defendant choose not to expend in defense, he will lose! Virtually 100% of the time! HOW is he then purportedly supposed to recover his damages?

Your statement reflects that of witch trials;
"Tie her to a rock & throw her in the lake... if she drowns, we'll know she wasn't a witch!"


But I don't see how you can argue that cases are not meritorious, or even frivolous, in instances where they go all the way to a jury verdict in favor of a plaintiff?

Certainly it's not difficult to find lawsuits brought simply to be a PITA, or a corporate hindrance. Many are fought to a jury verdict of mere tens or hundreds of dollars in awards...

We've got VOLUMES of lawsuits won on questionnable science, capitalizing (as pointed out in this thread) on the weaknesses of uneducated juries.

Can you keep a straight face & say these are "meritorious?"

MORE IMPORTANTLY (and the real issue,) how do you justify forcing the burden of cost of a required defense (as choosing not to expend gaurantees a default loss) upon an innocent (until proven otherwise) defendant?

Are you seeing how we're dooming innocent defendants to line the path for easy litigation? We certainly aren't making the system just for all.

Making litigators responsible is not dooming innocent plaintiffs, it is merely placing the the threshold of professional discretion at a reasonable & just level.

Cheers,
Dave
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Remember, not all litigation is about the fact of liability - sometimes that's even stipulated - but can be about the degree of damages. The plaintiff knows he's going to win the suit. Do you want to hand his attorney a blank check to run up as high a bill as he possibly can, knowing the defendant has to pay for it?

So how about a system in which the loser pays, but limit the payment to what the loser spent on litigation costs?
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So how about a system in which the loser pays, but limit the payment to what the loser spent on litigation costs?


In Germany, the loser pays the legal costs of the other side as a percentage of the sum of money that was in dispute in the lawsuit.
There is an official catalogue for this which decreases the percentage as the value of the lawsuit rises.
This money will buy you normal legal representation but not elite lawyers.
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It's no different than any other transaction where someone takes a percentage of the matter instead of a flat fee.

...a real estate broker (has) an incentive to get the highest price for my house, even if it is to the detriment of the purchaser.


But the purchaser can't be FORCED to buy that particular house. If the price is too high he walks away, and without a purchaser the RE agent doesn't make diddly.

In tort law, there is no similar constraint to prevent the plaintiff's lawyer from seeking ever-increasing verdicts, since a verdict doesn't involve a willing buyer, but by definition involves an INVOLUNTARY transfer of money.

-NGR
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Asthma-boy" represents the harm to the envirnment done by pollution of all sorts. Soon it won't just be kids with asthma who have to move out of the cities in order to breath normally.

Air pollution has been going down for years. In some isolated locales it has gotten worse, but that is the exception, not the rule.

-NGR
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One proposal at one time was to cap awards at $250,000. That's not an appropriate solution.

I believe the intent was to cap PUNITIVE damages at $250,000. You would still be free to sue for actual damages. If you suffered actual damages and costs that ran into the millions of dollars, you would still be free to sue for recovery of those millions.

I think it's important to ask whether it's really fair and proper to give millions to an individual as a way to "punish" a company. Especially when you consider that by punishing a public company, you're hurting the shareholders (who probably had NOTHING to do with any wrongdoing), but probably NOT touching those PEOPLE within the company who made the decisions that led to the harm in the first place.

-NGR
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