I am biased because I clerk for a personal injury attorney, but of all the things that need fixing in this state, should it really be at the top of the agenda?
Also, it seems that capping damages prevents ordinary working people from getting compensated when they are injured by a company. (We do not put individuals in jail for releasing bad drugs, hiring negligent semi truck drivers, etc.) Capping fees seems it discourages lawyers from taking cases for people who have no money. Thus, the poorest of society are prevented from seeking a redress of their wrongs.
According to my boss, "frivolous" and "junk" lawsuits don't make it very far. The lawyers who push them don't make it very far either.
It just seems "lawsuit reform," like the "immigration problem," is a means of distracting Oklahomans from our real problems; education, failing infrastructure, lack of health care insurance, drug abuse and teen pregnancy rates.
It boggles my mind how the people in a state with such a populist origins, continue to elect lawmakers who seem to put the interests of the insurance industry and business ahead of what is right and fair for working folks.
Tort Reform is all about protecting business from being responsible for their bad business practices and depriving working people from seeking compensation for damages they suffered at the hands of negligent business.
I too am amazed at Oklahomans being hoodwinked into voting against their own self interest over and over throughout most of our history.
My best guess is that we are dealing with simple people who don't have the information or analytic skills to make good decisions and unprincipled Republicans working for big business. "So-called churches" that push big business' agenda are also a factor.
The left needs candidates that talk in the same language as the country folk so that we can frame the issues in a way that these people can understand.
I have no problem with people recovering damages. Going for deep pockets rather than only the group responsible is wrong. If big business must be punished, the punitive damages should go to a charity of some sort. Why should someone become rich just to punish some company? The injured person is frequently guilty of doing something really stupid. If the company being sued is found not guilty, should the company be entitled to sue for damages to the reputation of the company, expenses and to punish the original plaintif? Seems fair to me.
It's popular to complain about the salaries of CEOs of big companies. Maybe the fees for lawyers in these type cases should be limited to standard hourly rates. If you have a good case, some lawyer will be willing to take it.
I'm all for it. I personally see numerous BS lawsuits come across my desk that are solely intended to shakedown people for whatever they can get.
We all have our favorites. Mine was a fellow airboat operator in southern Oklahoma who volunteered to help rescue people during a flood. He pulled a young man from certain death when no other boats were able to reach him. As the boy was being pulled from the water, a submerged log hit his leg and broke it. The airboat operator was sued by the boys parents.
On the flip side, I've worked for several companies in the last few years in low level jobs. I am astounded at the risks they expose workers to for such little monetary gain. Employees are threatened with dismissal, harassed and forced into unhealthy or unsafe activities and when they do threaten to sue...they're fired.
If reform means tipping the balance one way or the other, I'm not interested.
1. "BIG" cases are big gambles. An hourly rate will not work in many instances. The attorney often puts in months and months of work at the risk of not getting a dime... if he wins he can win big. Many firms can not afford the gamble as it stands (with the potential for a big win), shift the paradigm more (hourly rate/award cap) and very few if any firms would take the hard cases.
2.
quote:
The injured person is frequently guilty of doing something really stupid.
Comparative fault. An injured party has their damages reduced by the amount of FAULT they are assigned. If you are awarded $100,000 but you are 25% responsible for the injury you only collect $75,000. If you are more than 50% responsible, you collect nothing at all in some jurisdictions.
Hence, you are still responsible for your own stupidity in the current system.
3. As far as punishing the original plaintiff - if the case is thrown out as frivolous sanctions will be placed on the attorney and the plaintiff can be made to pay the other sides attorney fees. If the matter is a dispute that a court rules proper for adjudication, then neither side should be punished for pursuing their claims.
Another situation where a remedy is already in place.
4. Per the air boat operator, there are good Samaritan statutes on the books that protect such people from all liability but-for gross negligence or intentional acts. If you stop along side the road to help and put the tire on wrong, you are protected from liability unless you hit the person with the tire iron or failed to install the lugs at all and told them "OK drive off!"
Again, a situation that is already on the books.
5. Guido: There are numerous BS lawsuits. But most of them don't make it very far and SHOULD be dealt with earlier on. What's needed is NOT more rules, procedures and laws limiting actions. What's needed are judges who are willing to stand on the rules that exist. Trust me, they're out there. :P
Most of the people lobbying for change are doing so on their own agenda. To protect their business, their livelihood, or otherwise. Clearly the other side pushes back with their agenda.
But most of the people that clamor for reform don't really understand how the system works or what rules are already in place. Comparative fault, frivolous fees statutes, good Samaritan statutes, 12B6, the procedures and rules exist to get rid of poor suits. A situation of people who don't fully understand the system trying to fix was isn't necessarily broken.
If all the reforms the defense bar wants go through you end up, at a certain point, limiting citizens access to the courts and alternative remedies will be sought. If the plaintiffs bar god their rules business would be nearly impossible to conduct. Enforce the rules that are in place now, allow judicial discretion to play a role, and lets move on.
CF:
I am curious as to your bases for believing that numerous BS lawsuits do not make it very far? I have been a civil defense attorney for 8 years and have seen these sorts of cases having to go away by means of summary judgment. You're an attorney, when was the last time you had a motion to dismiss granted on grounds other than by procedure defect (i.e. lack of personal juris./defective service of process). Oklahoma's liberal notice pleading and right to amend guarantees every moron attorney or pro se plaintiff to plead and replead their claims.
Now, to get to summary judgment, a victim of these lawsuits must expend thousands of dollars in attorney fees and dedicate countless hours of their attention to matters other than what is really important--that lawsuit. If you are fortunate to have on these thrown out at summary judgment, then the appeal comes.
Trust me, I could tell you personal stories of these BS lawsuits. I had one civil conspiracy case that had been filed and refiled in several different states and forums over decades. It lasted so long that my mere entry of appearance in the matter resulted in me being identified as a witness to the "consipracy" in a subsequently refiled version of the action (after it had been dismissed).
I believe some people that oppose tort reform are more interested in career preservation. I remember about 2 years ago when Gov. Henry was considering a sweeping tort reform bill I received voluminous e-mails and phone calls from members of the the Oklahoma Trial Lawyers Association, the ABA, and plaintiff lawyers begging me and members of my firm to call the gov and urge a veto.
Rex & HT:
It boggles my mind how you and many others refer to those apparently not well off as "working people". Explain to me what makes a person a "working" person? Are you implying that if you make under a certain amount you are working and those making more than that are not? If so, stop with the code BS and label people for what they are "haves" and "have nots".
Hey Guido:
My original name was CazzoRex until the forum changed it. So to you I'll ask Che cazzo medici? Cause your tone is pretty cazzo.
I'm a student and a working person. My boss is a working person. Frankly, he seems to work like an animal, and it seems to have paid off in spades, he seems to be a "have." So what? I showed him your post and he made two comments:
"I went to law school to make money. Helping people and making money are not mutually exclusive. People who say the became a lawyer for another reason are either lying, or have a "cause." Either way, God bless them."
"Defense lawyers who are pro tort reform are like guys who squat with their spurs on. They are going to get stuck in the a** at some point."
Which, in all due respect, if no one files lawsuits, what will you do for a job? Are you so pollyannish that you would gladly do something else if no one ever again filed a lawsuit?
The term "working people" probably does mean people who are not quite as well off. People who don't get to sit inside a cushy office and type away on message boards all day. Like it or not, they are often the victims of your type of clients' misdeeds. They can't afford your hourly rates. Why shouldn't they have a mechanism to seek justice?
On the "career preservation" gibe: what's wrong with lobbying to protect one's career? That is done every day.
I don't know you. I have read some of your posts, and don't really have an opinion about you one way or the other, but I will submit this to you; plaintiffs' lawyers are risk takers. They have big egos and probably are not themost pleasant guys around, but they do help people. They take risks and sometimes get rewards. Why be resentful?
Hey Guido:
After rereading my post, I sound pretty heated. I was not trying to attack you personally and apologize for coming off that way. Based on where I work, I think I sometimes have a skewed view of reality ha ha.
What I want to say is this:
Poor people need some type of recourse against the "haves" (be they big companies, whatever).
Punishing a company in the pocketbook is the only way to punish a company.
The people who do this sort of work are making an investment. They should get get a return on their investment of time and money.
The market should determine what these folks can contract for.
It seems unfair to prevent the "have nots" from pursuing justice by taking the incentive away from the lawyers who could help them, because a law practice is also a business.
To me, this is just common sense. Hometown's post is right on.
Guido,
I agree that the rules should be more readily enforced to dismiss actions that are without merit before summary judgment. The problem is three fold as I see it:
1) PARTIES: Clients and attorneys who are willing to file crap as well as defendants who are willing to pay to make things go away (PR, short term economics, etc.). Also, for as many BS claims that plaintiffs lawyers bring, there is at least an equal number of BS motions to dismiss that are brought by defense lawyers - thus reducing the effectiveness (it has become in essence boilerplate).
2) Dockets that are too full for Courts to properly review cases before all parties are invested in the case.
and 3) Judges that are too scared to dismiss a case and be accused of letting big business or some horrible person get away with something.
I would be in favor of a law or rule or even movement to get judges to more appropriately adhere to summary disposition rules. So long as it applied to all parties and a BS defense was tossed along with BS claims. And why, DEAR GOD WHY, do courts let Pro Se defendant's and plaintiff's get away with so much horrible crap!
Anyway, I'm saying it is not the lack of rules that is causing the problems. It is a lack of proper utilization of those rules by plaintiffs bar, defendants bar and the Courts themselves.
quote:
Originally posted by Rex
"Defense lawyers who are pro tort reform are like guys who squat with their spurs on. They are going to get stuck in the a** at some point."
Which, in all due respect, if no one files lawsuits, what will you do for a job? Are you so pollyannish that you would gladly do something else if no one ever again filed a lawsuit?
Pollyannish because I support limitations on BS lawsuits and sanctions on those that bring them? Fine. I'm pollyannish. As for decrease in lawsuits resulting in my losing my job? First, assuming that I would not turn my attention from the civil courts to some other area of non-litigation law (criminal, transactional, etc.) that could happen. To be honest, I am at the point in my life where it does not really matter.
As for your comments on "working people", I guess I do not qualify because I work indoors make a good living. Sounds like somebody's an envious "have not."
Plaintiff's lawyers are "risk takers"? I agree that some are, but some are also bottom feeders. That comment and those in ths thread are not expressions of resentment. This is about not having a legal system set up to be a lottery where all of us are forced to play. Do you want to know what pollyannish really is? It's the idea that when we punish the big bad companies with massive judgments that only those companies suffer. Those financial losses are borne by the employees and shareholders of those companies (you know, your friends and neighbors) and the public that needs those company's products--for which they will now have to pay more. And don't give me that "insurance" crap either. Many victims of frivolous lawsuits don't have coverage and those that do will most likely have their rates increased.
So you, your boss, and anyone else keep defending the status quo, in which the following takes place:
Less than two hours ago I got a call from someone who wanted to sue his former employer because he got terminated. Was he discriminated against? No. Was he a whistleblower? No. Was he hurt on the job and fired for filing a comp claim? No. He wanted to sue because he was upset that he lost a job he had for several years (this despite the fact he immediately found work in his industry earning exactly the same). That's the sound of the mentality of the status quo that I cannot stomach: Life's unfair, I am going to sue someone.
Popular usage. Working class is the polite way to refer to the lower class. It spares their feelings.
Definition of Working Class from Webster's Dictionary.
working–class
adjective
Date: 1839
: of, relating to, deriving from, or suitable to the class of wage earners <working–class virtues> <a working–class family>.
Now I am pretty comfortable and I have hired attorneys on several occasions and have to tell you that I could not afford to hire a litigator if he or she were not willing to take my case on contingency.
And they would not take my case unless they believed it had merit and they could make money on the case.
Another evil corporate empire under litigation siege brought to you by the poor working class:
http://www.caller.com/news/2009/jan/13/local-man-sues-hooters-claims-gender-bias-seeks/
quote:
Originally posted by cannon_fodder
Anyway, I'm saying it is not the lack of rules that is causing the problems. It is a lack of proper utilization of those rules by plaintiffs bar, defendants bar and the Courts themselves.
Why should we expect the legal system to be any better at self regulation than Wall Street?
It's time for change.
quote:
Originally posted by cannon_fodder
1. "BIG" cases are big gambles. An hourly rate will not work in many instances. The attorney often puts in months and months of work at the risk of not getting a dime... if he wins he can win big. Many firms can not afford the gamble as it stands (with the potential for a big win), shift the paradigm more (hourly rate/award cap) and very few if any firms would take the hard cases.
2. quote:
The injured person is frequently guilty of doing something really stupid.
Comparative fault. An injured party has their damages reduced by the amount of FAULT they are assigned. If you are awarded $100,000 but you are 25% responsible for the injury you only collect $75,000. If you are more than 50% responsible, you collect nothing at all in some jurisdictions.
Hence, you are still responsible for your own stupidity in the current system.
3. As far as punishing the original plaintiff - if the case is thrown out as frivolous sanctions will be placed on the attorney and the plaintiff can be made to pay the other sides attorney fees. If the matter is a dispute that a court rules proper for adjudication, then neither side should be punished for pursuing their claims.
Another situation where a remedy is already in place.
4. Per the air boat operator, there are good Samaritan statutes on the books that protect such people from all liability but-for gross negligence or intentional acts. If you stop along side the road to help and put the tire on wrong, you are protected from liability unless you hit the person with the tire iron or failed to install the lugs at all and told them "OK drive off!"
Again, a situation that is already on the books.
5. Guido: There are numerous BS lawsuits. But most of them don't make it very far and SHOULD be dealt with earlier on. What's needed is NOT more rules, procedures and laws limiting actions. What's needed are judges who are willing to stand on the rules that exist. Trust me, they're out there. :P
Most of the people lobbying for change are doing so on their own agenda. To protect their business, their livelihood, or otherwise. Clearly the other side pushes back with their agenda.
But most of the people that clamor for reform don't really understand how the system works or what rules are already in place. Comparative fault, frivolous fees statutes, good Samaritan statutes, 12B6, the procedures and rules exist to get rid of poor suits. A situation of people who don't fully understand the system trying to fix was isn't necessarily broken.
If all the reforms the defense bar wants go through you end up, at a certain point, limiting citizens access to the courts and alternative remedies will be sought. If the plaintiffs bar god their rules business would be nearly impossible to conduct. Enforce the rules that are in place now, allow judicial discretion to play a role, and lets move on.
1. A case that is a big gamble is maybe not such a good case. I was only thinking of a standard hourly rate as a cap, not a minimum. A good case could still be taken on contingency with reasonable expectation of financial reward. I think of contingency cases as a retail sales person on commission. You win some and lose some. It's part of the business. I don't want my next suit jacket or car to cost more because the previous customer didn't buy and now the sales person needs to make up for lost time.
2. Comparative fault. Nice idea, I'm not convinced it actually works in little guy vs. deep pocket defendant. In our entitled society, hardly anyone will take any personal responsibility for their actions. It's someone else's fault.
3. If a company is sued and loses, I am sure the winners legal fees are covered by the loser. If the company wins, I am sure the company pays their own legal fees.
4. If you don't have anything to take, be a good Samaritan. If you have any assets, it's better not to help. It goes against my nature to not help if I can but I cannot risk my future to today's lawsuit society. The good Samaritan law didn't help the airboat operator. He should have let the kid drown. Harsh but reality. Hitting a person with a tire iron should be assault, different subject. If you put a compact spare on the axle that could cause drivetrain damage if driven too fast or to far and the driver ignores the car owner's manual instructions, you have comparitive fault for enabling the driver to drive away. Get ready to empty your wallet.
5. There may be judges out there that will stand on the rules but it only takes a few to wreck the system.
Our lawsuit happy society makes it difficult to make product improvements. Just as soon as a manufacturer improves a product, they have admitted that the previous product was inferior. Can you say lawsuit? If a product met the governmental and commercial safety organizations' specifications at the time of manufacture, a company should not be able to be sued for not meeting newer regulations.
Guido Guido,
Gotta get a dig in? Before I dig back, do you know what a "Guido" is in Italian American culture? It was popularized during the 80's and early 90's and was a term to describe young Italian men who wore wife beater t-shirts, silk baseball jackets, lots of gold, long or big hair and usually drove an IROC Z 28. Thought you might like to know that. Probably no "Guidos' in Tulsa.
As for my supposed envy of the "haves;" YOU BET! That is why I am working and studying. How about the envy of some lawyers when plaintiffs' lawyers roll to work in track suits or shorts in new expensive cars? Feel lilke they don't deserve it because they are not "real lawyers?"
Tort reform is the policy of the lap dogs of business. It does nothing to help anyone except bad actors. It will deprive the most vulnerable of society from the pursuit of justice.
If you are for it, shame on you.
quote:
Originally posted by Rex
I am biased because I clerk for a personal injury attorney, but of all the things that need fixing in this state, should it really be at the top of the agenda?
Also, it seems that capping damages prevents ordinary working people from getting compensated when they are injured by a company. (We do not put individuals in jail for releasing bad drugs, hiring negligent semi truck drivers, etc.) Capping fees seems it discourages lawyers from taking cases for people who have no money. Thus, the poorest of society are prevented from seeking a redress of their wrongs.
According to my boss, "frivolous" and "junk" lawsuits don't make it very far. The lawyers who push them don't make it very far either.
It just seems "lawsuit reform," like the "immigration problem," is a means of distracting Oklahomans from our real problems; education, failing infrastructure, lack of health care insurance, drug abuse and teen pregnancy rates.
It boggles my mind how the people in a state with such a populist origins, continue to elect lawmakers who seem to put the interests of the insurance industry and business ahead of what is right and fair for working folks.
When you say frivilous and junk...are you referring to cases like Crane, Pool & Schmidt would take on Boston Legal? cause if so, they made A TON OF MONEY on these types of lawsuits, well until the end....
Red Arrow,
It seems to me you are the quintessential person who really doesn't understand the system but really wants it changed.
1. No one would take a contingency fee case if the cap is their standard hourly rate. There is no incentive to do so. I will merely charge everyone my standard hourly rate, if you can't pay you don't get an attorney.
Otherwise, I am gambling with my livelihood to help you. I won't do that without the possibility of reward. My normal rate is not a reward.
2. Comparative fault frequently works. We are not asking people to take responsibility for their actions, we are having a jury TELL them they have to. You are just as likely to be a juror as anyone else and thus have an equal say in that process.
3. There is no disparity in company vs. individual in having to pay fees. That is not part of the criteria and no study has shown such an issue. Though it sure makes a good talking point, it lacks a basis in reality.
4. The good Samaritan statute does work. Waterboy did not say when the suit was filed nor if it was successful. You can file suit on anyone for anything, that doesn't mean a damn thing. There is no evidence presented in this discussion that the Good Samaritan Act doesn't work.
Again, it makes a great talking point but as of now is lacking in a substantive basis for the discussion.
Oklahoma Good Samaritan Act (//%22http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=76+OS+5%22)
5. Yes, bad judges can destroy ANY system. So what do you propose to fix it? Keep in mind all the rules will be implemented by politicians (mostly attorneys) and executed by judges. So by your reasoning the situation is hopeless and we should scrap the courts.
- - -
Finally, you can't be sued for failure to meet the new regulations. Products liability means you were negligent in building the product and it was sold to the public in an inherently dangerous condition. Simply improving your product is not only NOT grounds for a products liability suit, you can't raise remedial measures in such an action. So by rule it can't be used against them.
Again, you clearly have no idea what the realities are. I assume you have neither practice nor studied law. I assume you work in a totally unrelated field and very well may have never been involved in a suit as party or as a juror. All of your assumptions were wrong.
There are too many BS lawsuits. Judges DO need to stand up and throw crap out more often. But the system isn't broken, it just isn't being run correctly.
But that's OK, because we have elected judges. That way we can make sure we don't have activists and those who enforce the rules in a manner that we like. I can only trust, Red Arrow, that you pay attention to the Judge positions as they come up for election and vote accordingly.
Doesn't a businesses' insurance company usually provide defense and make the payment if there is verdict against the business?
quote:
Originally posted by Hometown
Doesn't a businesses' insurance company usually provide defense and make the payment if there is verdict against the business?
Yes, and from what I've seen, they tend to be the driving force behind paying nuisance claims so that they don't have to spend money defending them.
quote:
Originally posted by nathanm
quote:
Originally posted by Hometown
Doesn't a businesses' insurance company usually provide defense and make the payment if there is verdict against the business?
Yes, and from what I've seen, they tend to be the driving force behind paying nuisance claims so that they don't have to spend money defending them.
Which then invites more nuisance claims. I used to work for a safety first machine tool manufacturer. (A slump in machine tool sales started about 8 yrs ago.) There were still claims.
quote:
Originally posted by Hometown
Doesn't a businesses' insurance company usually provide defense and make the payment if there is verdict against the business?
Liability insurance is not free.
quote:
Originally posted by cannon_fodder
Red Arrow,
It seems to me you are the quintessential person who really doesn't understand the system but really wants it changed.
The chance of an engineer winning a word game with a Lawyer is somewhere near zero. Whether I understand the system or not, I do not like the results I see in the press. I'm sure there are many more reasonable examples that do not make the press.
1. No one would take a contingency fee case if the cap is their standard hourly rate. There is no incentive to do so. I will merely charge everyone my standard hourly rate, if you can't pay you don't get an attorney.
Otherwise, I am gambling with my livelihood to help you. I won't do that without the possibility of reward. My normal rate is not a reward.
I still consider "you" to be in retail sales on commission. I will concede a cap larger than standard hourly rates but will not concede a free-for-all. Reward: how about fair compensation for services performed. Word game I know I cannot win.
2. Comparative fault frequently works. We are not asking people to take responsibility for their actions, we are having a jury TELL them they have to. You are just as likely to be a juror as anyone else and thus have an equal say in that process.
Again, I see the big cases in the press. I saw a site on the web about garden tractor back over accidents. Tragic accidents indeed. The site claims "It's not your fault...". Well, yes it is. It is your fault if you allow your young children and pets around inherently dangerous machinery and then don't look before you back over them. I won't argue that some machines can use better safety guards but this example is just beyond comprehension. The attitude that nothing is your fault, everyone is a victim is my complaint. It's the personal responsibility issue.
3. There is no disparity in company vs. individual in having to pay fees. That is not part of the criteria and no study has shown such an issue. Though it sure makes a good talking point, it lacks a basis in reality.
I don't remember my former employer ever talking about getting legal fees back when he totally won a case, which did happen. He held periodic safety meetings regarding the safety of the product and the money he spent defending against people filing claims to make a buck. They often hoped for a settlement but the boss never settled unless a claim was legitimate. Stuff happens sometimes.
4. The good Samaritan statute does work. Waterboy did not say when the suit was filed nor if it was successful. You can file suit on anyone for anything, that doesn't mean a damn thing. There is no evidence presented in this discussion that the Good Samaritan Act doesn't work.
Again, it makes a great talking point but as of now is lacking in a substantive basis for the discussion.
True, you can sue for anything but may not get anything. Someone being sued still has to hire a defense lawyer. Are there Contingency Defense Lawyers? What is their "reward"? I don't know, I am asking. I know it's dangerous to ask a question you don't know the answer to but this is an internet forum, not a court of law.
Oklahoma Good Samaritan Act (//%22http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=76+OS+5%22)
5. Yes, bad judges can destroy ANY system. So what do you propose to fix it? Keep in mind all the rules will be implemented by politicians (mostly attorneys) and executed by judges. (Also attorneys.) So by your reasoning the situation is hopeless and we should scrap the courts.
I am not so pessimistic as to say the situation is hopeless and the court system should be scrapped. I also believe our system of government is not so great but it is better than the other options. As you surmised(?) and I stated above, I am not part of the legal profession. Perhaps as an insider you can suggest how to get rid of the bad judges when most of us do not know enough about them to vote them out if they are elected. How does the system get rid of appointed judges? There is not enough time in the day to get involved in everything. Prove the legal system can be better than Wall Steet.
- - -
Finally, you can't be sued for failure to meet the new regulations. Products liability means you were negligent in building the product and it was sold to the public in an inherently dangerous condition. Simply improving your product is not only NOT grounds for a products liability suit, you can't raise remedial measures in such an action. So by rule it can't be used against them.
Maybe the rules have changed. In the early 80s there was an aviation case where an airport owner blocked the take off of an airplane towing a glider by driving a van on the runway in such a manner the tow plane could not avoid the van. The tow plane pilot was severely injured, and almost died. I met the towpilot and his wife several months before the "accident". The pilot had the owner of the plane install shoulder belts in front seat of the plane which had been built when only seat belts (without shoulder belts) were required. Normally only the tow pilot is in the plane. This flight was different and there was a photographer passenger in the front. The pilot was flying from the back (legal) but there were no shoulder belts. The information I later saw included Piper (the airplane manufacturer) as a defendant because the rear seat did not have shoulder belts. Piper, having deep pockets, paid big. The pilot certainly deserved help but in my opinion, not from Piper. The plane met safety requirements at the time of its manufacture. This is at least one case that severely crippled the manufacture of small planes. You may have information available that I do not.
Again, you clearly have no idea what the realities are. An over generalization. Clever lawyer word trick. I assume you have neither practice nor studied law. Correct I assume you work in a totally unrelated field and very well may have never been involved in a suit as party or as a juror.
I was on Federal jury duty once but they didn't seat me on any cases. I did have the tip of one finger cut off in a garden tractor incident involving the hood, no blades involved. The grass was damp, the tractor didn't turn and I hit a guy wire. The tractor hood pinched off the tip of my finger between the hood and the steering wheel. I decided it was not Sears/Craftsman's fault that the tractor did not turn on the damp grass. My health insurance got most of the tip re-attached so I never pursued riches for the pain and suffering caused by the big bad money grubbing tractor manufacturer.
All of your assumptions were wrong. Maybe some but not all.
There are too many BS lawsuits. Judges DO need to stand up and throw crap out more often. But the system isn't broken, it just isn't being run correctly. You are the insider in a system run by insiders. Tell us how to fix it or we outsiders will want it changed.
But that's OK, because we have elected judges. That way we can make sure we don't have activists and those who enforce the rules in a manner that we like. I can only trust, Red Arrow, that you pay attention to the Judge positions as they come up for election and vote accordingly.
I try to pay attention to the judges but mostly the info available to people outside of the profession is in the Tulsa World editorial section shortly before the election. I don't recognize or remember any judges' names on a case, if indeed it is even provided by the press. I have to work for a living (not implying you don't) and don't have the time to devote to following the careers of the judges. I won't hold my breath waiting for the legal fraternity to make that kind of info readily available to the general public regarding judges.
I don't hate lawyers. I know that exact interpretation of the English language is tricky at best. I can respect an opinion or ruling I disagree with. I do not accept or respect anyone that attempts to use the legal system to steal resources from someone or entity just because they have deep pockets. It costs us all in the long run.
A person certainly has the right to recover actual damages. One of my cousins was hit by a taxi driver when my cousin was a kid. (1960s) My cousin was hearing impaired. He sustained permanent brain damage but lived. There were many kids in the area chasing an ice cream truck. The taxi driver was not paying attention and going too fast. I don't remember his speed or the speed limit. My aunt, uncle and cousin got a settlement that paid the bills but they certainly didn't make any money on it.
I said in another post in this thread that if punitive damages are required to "teach a company" a lesson, that money should go to a charity of some sort, not to the plaintiff. I will add an industry safety standards group as another possible recipient of those funds.
I am not trying to win any word games. I am trying to explain what the rules are and WHY the perception you get from the press is wrong. Look at it this way, Tulsa County had more than 20,000 civil lawsuits in 2008 – how many "bad" ones did you hear about in the press? It is more a problem of perception than actually a problem – with exceptions granted as Guido suggests.
1. "Fair compensation for services performed." OK, how about engineers only get paid for projects they work on if the bid is won and that aspect of design incorporated into the final product? If that happens you get your normal wage, if not, you get nothing.
That doesn't make much sense, does it? No, if that system was to be put in place you would expect to be compensated like a partner in the firm – willing to sacrifice wages when you don't win a bid or your design is not selected/incorporated in exchange for a larger reward when your is chosen (not sure what type of engineering you do, but I trust you follow the analogy).
Likewise, I would not take a case on contingency fee ever if my normal wage was a cap. I simply wouldn't do it and firms that cater to lower income clients would cease servicing that market. I'd just charge everyone $200 an hour and if you can't pay, you don't get an attorney. No incentive whatsoever for me to take a risk on a case that I might not be paid on.
2. I agree there are bad examples and juries that make findings that seem odd to me. Usually, if you hear ALL the facts it becomes more clear. Usually, those judgments are reversed or reduced. I can't comment on this particular case and agree people need to understand personal responsibility.
But again, an example of taking the one or two bad cases you hear nationwide and extrapolating that the system sucks. We have engineering failures more often than that, does that mean our system of engineering is greatly flawed or that mistakes are made?
3. You do not get fees if you "totally win." You only get fees in some statutory situations – as a defendant that is if the claim is frivolous.
4. No, there are not contingency defense lawyers. They have no reward. They have a recourse of suing seeking fees against the party for a frivolous action and can file a counterclaim for defamation or otherwise... but if a good Samaritan is sued no collection will be made but it will still suck for that party.
Hopefully, someone would volunteer some time to help them out. Hopefully. I would not be opposed to legislation mandating fees for suing a good Samaritan.
5. The system rarely gets rid of bad Judges. A flaw I readily admit. I wish we could rate judges the same way professors are peer and student reviewed. Some judges have clogged dockets they never bother clearing, some refuse to learn the law and run away from new areas, and some enjoy power a little to much.
MOST, have earned their position and do a fine job. I wish there was a way to better inform the public or the bar association of the difference. Not that I am the proper "judge" in that matter, but collectively the bar would have a pretty good handle (as there are two sides to every case the ratings would remain level.
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quote:
I never pursued riches for the pain and suffering caused by the big bad money grubbing tractor manufacturer.
There is a great myth that lawsuits are get rich quick schemes. NO, NO, NO. Even if an attorney does a good job the odds are you will still wish whatever malady caused the situation never happened. It is NOT a get rich quick scheme. I am to tell clients that all the damn time.
Products liability can be different if some sort of malice or gross negligence is implied. But a tractor not turning on wet grass is foreseeable and an accepted risk of operation. Just like operating it in mud, or on ice, or whatever. Though you are correct that someone probably sued over something similar at some point and there is probably a tag line in the manual somewhere.
Anyway, in that instance – if you somehow proved they were at fault (which I don't see), you would have collected medical bills (Which your insurance would claim in subrogation), and lost wages, and then whatever your medical bills are once more for pain and suffering. Not a get rich quick scheme and a situation most people would still wish to avoid, a few thousand bucks in exchange for a lot of pain, being scared about deformity/loss of use, and a TON of pain in the donkey.
A valid lawsuit is supposed to get your back to par. That might include compensation for pain and suffering, but generally that amount is in the same neighborhood as actual medical bills. And if you had to go through something by someone elses fault... then you are rightly compensated for it.
If your relatives only had their medical bills paid then I am very sorry. Certainly you can see how the family was not justly compensated for the accident. A permanent injury is far more costly than just immediate medical bills – particular brain damage to a child.
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Thanks for the discussion. It is interesting to hear other perspectives (other than plaintiffs & defense or the media).
When I interviewed for legal jobs at agencies in California a common question was "would you consider working for an 'Insurance Defense' attorney?" This kind of legal job rated this question because a good number of legal staff refuse to work in insurance defense because insurance defense is seen as something just short of abhorrent. I spent over nine years supporting one of the most successful insurance defense teams in the business and if you think the insurance industry is interested in seeking justice you are wrong. They aggressively pursue their own self interests without shame with no regard for the insured. It's all about the bottom line. The Insurance Industry exploits every resource that their money can buy.
I'd like plaintiffs to have a decent shot at justice. Tort reform is designed to limit that.
FWIW, I cannot disagree with anything in CF's last post.
CF (and anyone else still interested),
I have always worked for a company, not as an independent entity. In most cases, I have been salaried exempt. (That means I can work overtime without additional compensation.) Sometimes my work has not been used in a product but I was still paid. Pursuing alternate solutions is a part of engineering. Someone above my position determined that investigating that solution (up to some point) was worth the cost. Some portion of the company's standard rates allow for this kind of activity. Preparing a quote for a job involves time, usually at no cost to the potential customer. A complex project takes more than a cursory guess to be accurate. I have spent time doing this type of work. Developing a product that is cancelled or does not succeed results in expense without income. When developing a quote, standard rates are used. A new potential customer will not pay more than the competitive rates just because a previous product was not successful. There is another engineering firm just down the street, the same as there is another law firm. Where I am going is that although I personally have been paid for my time, the company I worked for has not always received compensation for their expense in pursuing a product or contract.
Contract engineers receive a higher pay rate than a regular (used to be called permanent) employee. Contract engineers are brought in for a specific time or job and do not receive benefits like insurance and vacation. They are also expected to be able to jump into a job with no significant training. When their contract is over, they are gone unless there is enough work for a new or continued contract. No work, no job, no hard feelings. Regular employees receive benefits and a lower salary in exchange for some level of job security. They also are usually required to sign non-competitive agreement in the event they leave the company. Usually the intellectual rights to any patents developed on the company's buck are signed over for $1.00, a major grumbling point among a lot of engineers. I have been RIFed as a regular employee twice in 30 years due to lack of business. I quit one other job because the writing was on the wall.
Independent consultants are more likely to take a chance and take a potential profit in the future for a project they believe in. An engineering firm or individual is obviously allowed to decline a job with little prospect of success. A large project will often include progress payments. Proof of progress is provided to the client in exchange for payment for continued effort. This would apply to a large company as well as a small partnership. I am sure there are other compensation plans but my personal experience is limited to the descriptions above.
Perhaps a major difference between engineering and practice of law is that the public does not have the expectation that a person has a right to access to engineering services as much as they expect access to the legal system.
There have been some notable engineering failures. One of the most famous is the suspension bridge over the Tacoma Narrows (Galloping Gertie) that was destroyed by a resonance caused by wind. It is a classic in engineering schools. Before either of us was born, steam boilers and steam train locomotives exploded too often. Boiler codes and other design standards were developed to achieve acceptable designs. The "System" was producing unacceptable results, it was changed. If you ever watched "Engineering Disasters" on the History (Discovery?) Channel with an open mind, you would have noted that a significant number were not truly engineering disasters but management, maintenance and construction errors. A former co-worker used to inspect large building construction as it was in process. Most deviations from the engineering specs were acceptable. He made the contractors fix some others at the risk of himself being fired. Who knows what may have been hidden.
I will agree that perception is part of the problem. Reasonable results from lawsuits do not make the news. Neither do the number people not electrocuted by turning on their TV, the number of people that successfully drove their car to work and then home, the number of people not injured by a hot water heater that didn't explode, the number of people that can access the internet, the number of people not killed by a faulty building elevator, the number of people successfully completing a cell phone call ... you get the idea. Product recalls reflecting some level of engineering deficiency less than spectacular get a lot more attention than a similar level of legal system "failures" because they affect more people. I am thinking primarily of product recalls that are not life threatening. Just my opinion, no numbers to back it up.
"Totally win". OK, a term I made up to save typing to indicate one side was judged to be without fault. If you sue me and I am judged to be without fault (100% is unlikely, I admit, even if I really am totally without fault), I should not be required to sue you to recover my expenses, even if the suit was not frivilous. There should be some risk to filing a suit since your actions may/will adversely affect the life or livelyhood of another. You may not agree but that is my opinion. The lawyer may lose time and money but the client has nothing to lose.
"I never pursued riches for the pain and suffering...", an intentional exaggeration on my part. You and I (fortunately) live in a different world than some. A few of my engineering friends worked some really ****ty manufacturing jobs in their "starving student engineer" periods. One of the topics of conversation at these places was about compensation for on-the-job injuries. Maybe the conversation went something like this, " This finger paid for Becky's braces, this one for the wife's surgery. It's time for Joey to start college. I guess this finger tip will have to go." I admit this isn't a real quote but the concept is directly out of conversations with my friends. I have no reason to doubt the credibility of the stories given the atmosphere of my conversations with my friends. My friends found this concept as foreign as you or I would. Mostly they involved insurance settlements. Some may have made it to a lawsuit. Get rich quick is in the eye of the beholder. For someone struggling at two jobs to make ends meet, a $100,000 settlement is a lot of money.
I found a success for the legal system. I Googled "backover accidents tractor" looking for the site I previously mentioned. I didn't find that one but found a similar one. I also found a partial article about a Maryland judge that ruled a tractor company was not responsible for a particular backover accident. +1 for a gutsy judge.