Don't you sometimes wonder if the people who think that people see this as a money-making scheme are so greedy that they honestly believe people would prefer money to a working limb or a living relative? I have to wonder what it says about people that they think this is a widespread problem. People want money for these things, IMO, because they are angry and wish to inflict punishment on those who caused their suffering. And you can't put a corporation to death, can you?

Posted by: Magenta at July 10, 2003 09:07 PM | PERMALINK

So many of the calls for tort reform also play dishonestly on switching around compensatory versus non-compensatory (punitive) damages and initial versus final damage awards.

And leaving out the fact that less litigious societies require state enforcement of more areas of the law.

Posted by: taktile at July 10, 2003 09:45 PM | PERMALINK

Magenta, I think what it says about those people is that they value money far, far too much.

Posted by: John Yuda at July 10, 2003 10:08 PM | PERMALINK

Once upon an American time neighbors cared when you hit a patch of bad luck. You got sympathy. Now when people hear you've lost loved ones in plane crashes, they think you hit the jackpot in Vegas.

And, let a crowd of people in a store hear a crash outside and half go running in hoping they can claim some whiplash damage.

Even worse, the lawyers don't care! They won't look you up, down and sideways when you claim to have a pain in your ass, as long as you can let them sue someone for causing it.

If tort reform's not necessary, then we should pass a law that if you're called for jury duty, you serve. And, you don't have to wait around and waste days, hoping to get called to serve on one. WASTE PEOPLE TIME AND TORT REFORM ISN'T EVEN HALF YOUR PROBLEMS ANYMORE. BROKEN THINGS CAN BE FIXED. DESTROYED THINGS ARE BEYOND THE POINTS OF NO RETURN.

Posted by: Carol Herman at July 10, 2003 10:37 PM | PERMALINK

The California cap on medmal non-economic damages shows that a cap won't reduce medmal insurance premiums. Or am I wrong, and California medmal insurance premiums are still at 1975 levels?

The real question is who decides what appropriate compensation is?

The jury system has two centuries of success (anomalies notwithstanding) to recommend it. What do all these tort reform programs have going for them?

Posted by: James E. Powell at July 10, 2003 10:37 PM | PERMALINK

Once upon an American time neighbors cared when you hit a patch of bad luck. You got sympathy. Now when people hear you've lost loved ones in plane crashes, they think you hit the jackpot in Vegas.--

Huh?

--And, let a crowd of people in a store hear a crash outside and half go running in hoping they can claim some whiplash damage.--

Yeah, I was almost run over in one of those stampedes. I sued for $15,000 and won.

--If tort reform's not necessary, then we should pass a law that if you're called for jury duty, you serve. And, you don't have to wait around and waste days, hoping to get called to serve on one. WASTE PEOPLE TIME AND TORT REFORM ISN'T EVEN HALF YOUR PROBLEMS ANYMORE. BROKEN THINGS CAN BE FIXED. DESTROYED THINGS ARE BEYOND THE POINTS OF NO RETURN. --

Your caps lock, contrary to popular belief, is not the "make sense" key. Far too many suffer from this delusion.

Posted by: jesse at July 10, 2003 11:16 PM | PERMALINK

Capping of medical damages will be part of the grand compromise that institutes national health care. In one form or another it will amount to:

A national health care system, probably single payer, or state by state single payer.

In return, the medical industry gets caps on tort damages, and accepts tighter regulation on removing or revoking physicians' license to practice.

The day that the government has to pay for malpractice damages, is the day that there will be sharp limits on jury awards.

Posted by: Stirling Newberry at July 11, 2003 03:35 AM | PERMALINK

The problem is that if the medical/insurance industry gets 'tort reform', they have neither the obligation nor incentive to give in on any other issues.

Beware of quid pro quo, if it's not in the interest of the other party to behave honestly.

Posted by: Barry at July 11, 2003 03:51 AM | PERMALINK

Carol, welcome to the blog. Are you David Thompson's sister, by any chance? There's a certain family resemblance :)

Posted by: Barry at July 11, 2003 03:52 AM | PERMALINK

"Even worse, the lawyers don't care! They won't look you up, down and sideways when you claim to have a pain in your ass, as long as you can let them sue someone for causing it."

No, that's not how it works at all. Most of these cases are taken by plaintiffs' attorneys on contingent fees--no win, no pay. That means that the attorneys absolutely must screen the cases for merit--they can't afford to invest a bunch of time and money in a case that isn't going to pay them anything.

This nonsense about people with frivilous cases getting rich is an urban legend--it doesn't happen.

Posted by: rea at July 11, 2003 05:49 AM | PERMALINK

What makes Kevin think pain and suffering are always real?
Of course, by definition, they are.
But what makes Kevin think the pain and suffering for which one is sued is real?
How does one prove mental anguish?
Just for one example.
Then there is the deep-pockets idea, where the one with the most money is hauled into court as a defendant on the most tenuous grounds, while the jury looks on this not as a matter of justice but of some way to get money to the plaintiff.
I recall NPR having a morning show on Saturdays by attorneys for attorneys, about tactics and so forth.
One guy talked about jury selection, picking a blue-collar Italian (for one example) because they are known for emotionalism, and suing one of the guys riding in the back seat of the car because his family had the highest limits on their auto insurance.
The plaintiff might have been suffering and subject to pain, but the attorney was insuring that even if that were not the case, many on the jury could be made to feel instead of think.
And the guy in the back seat had nothing to do with anything.
So how is this justice?
It isn't. It's a mining expedition where the most promising mine is chosen with a view to making everybody rich.
The jury is giving away somebody else's money and feeling good about it.
And the other attorneys on the show figured it was pretty slick.
I notice one of your posters did the big corporation thing, as if they're the only ones who get hammered like this.
We now, as one judge observed, see people who are not sick suing corporations who have never made asbestos.
But that's okay because hammering a big corporation is A Good Thing.
As Aunt Polly said, with considerably more contrition, "You didn't get a lick amiss, I reckon."

Posted by: Richard Aubrey at July 11, 2003 06:09 AM | PERMALINK

Kevin,

Your point about annualized versus lump sum payments makes sense to me. It's not a solution I've seen proposed before or one that had occured to me.

I also agree about the $250k figure being arbitrary. For people who don't live in the very expensive urban centers, that's a lot of money even today, so it seems like a good figure. But if you live in Manhattan or L.A., it's not much at all. Having moved in the last year from a place where one can buy a nice 3 bedroom home for $100,000 to one where you have to pay $250,000 for a mediocre townhouse or $450,000 for that same house, it's a relevant point. Maybe the cap should be regionally cost-adjusted?

I also agree with the commenter who notes that extremely high jury awards are often radically reduced on appeal or in settlement.

Posted by: James Joyner at July 11, 2003 06:12 AM | PERMALINK

Richard - how does a jury determine anything? They look at the evidence available and make the best judgment possible.

I hope that you realize only 0.9% of ALL medical malpractice cases ever make it to jury. To put it another way, 99.1% of medical malpractice cases never have a body of 12 peers passing any sort of judgment on the case.

I always love this line of argument - a jury is capable of determining virtually anything except whether or not getting the wrong leg cut off screws up your life. Lawyers *always* make appeals based on emotion in addition to facts - if you think that jury trials are dispassionate recitations of facts, you need to turn on Court TV once in a while, m'boy.

Posted by: jesse at July 11, 2003 06:57 AM | PERMALINK

I always love this line of argument - a jury is capable of determining virtually anything except whether or not getting the wrong leg cut off screws up your life.

well put jesse. it's perfectly acceptable for 12 people to decide to put someone to death, but they can't be trusted with important matters, like money.

Posted by: danelectro at July 11, 2003 07:08 AM | PERMALINK

You missed the point, Jesse.
First, the attorney was picking, to the extent he could, jurors who could be swayed by appeals to emotion and not by facts. That is to say, to get the result he wanted regardless of facts. That's his job, I suppose, but it would be silly to pretend it doesn't happen. Second, he was suing somebody who had nothing to do with the issue at hand. That's not in a search for justice or punishment of the guilty, but for money.
I have been involved in turning annualized awards into lump sums. When the award is spread out, there needs to be a mechanism for paying it up front, since there is no guarantee that the payor will survive the payee, will always have the money, will always be available. Sometimes the payment schedule is undertaken as an annuity by an insurance company in return for a single payment. This way, a judgment which is actually spread out might look like a lump sum, but the money goes to an insurance company which then has a contractual obligation to pay the terms of the judgment.

Posted by: Richard Aubrey at July 11, 2003 07:09 AM | PERMALINK

Uhh, Richard you do realize that insurance companies have lawyers too? And they have the power to select people, like say you, who think that plantiffs are get rich quick artists and will ignore any pain and suffering. Why is the market system fine for all other areas except contract enforcement?

As to the Kinsely piece, it was nonsensical. He basically said caps are necessary for equality. It a terrible argument, since it assumes that the problem is luck and not the underlying problem of measuring pain to begin with. Kinsley solution would be the same if the cap was $5. and just imagine the cost savings with that cap! No case would ever go to trial1 Think of all the lawyers now available to write legal opinions for Scholes!

Posted by: Rod at July 11, 2003 07:20 AM | PERMALINK

Rod, your kidney got in the way of your reading.
I said nothing about insurance companies and claims and litigation with them as a party.
I said that spread-out settlements are sometimes managed by using annuities purchased for a lump-sum from an insurance company.
If you were not so anti-corporation, your glasses might not get so steamed up and you'd be able to read better.

Posted by: Richard Aubrey at July 11, 2003 07:25 AM | PERMALINK

Richard, the problem with suing somebody with a deep pocket but little connection to the case, even in those states which do not require apportionment of damages among defendnants in accordance with their respective degrees of fault, is that you usually lose. Asking a jury to do something counterfactual out of sympathy to a plaintiff usualy doesn't work. And you missed Rod's point about jury selection--the defense (almost always an insurance company, even if nominally an individual) gets the same opportunity to influence jury selection that plaintiff does.

Haven't you ever been callled to jury duty? Jurors are ordinary people just like you. Why don't you think they take being a juror seriously?

Posted by: rea at July 11, 2003 07:34 AM | PERMALINK

Where was it that I was anticorporate? You're the one attacking lawyers for trying to earn a living. I am the one defending the enforcement of contracts in order to maintain a capitalist system. You're the one having government step in to restructure property rights forcing me to take on more risk.

Hey, rea if that happens, can I start a class action lawsuit against the government for an illegal taking?

Posted by: Rod at July 11, 2003 08:07 AM | PERMALINK

If asking a jury to do something counterfactual, why do attorneys do jury shopping? In Michigan, they stretch and stretch and stretch to get a Wayne County jury. Are they different from an Ottawa County jury? The attorneys think so. Ditto Alabama. And when an attorney speaks openly about picking somebody from a group stereotyped as being easily swayed to do something counterfactual, is he wasting his time?
Whether the insurance company does the same thing is not the point. The point is that it is done by the plaintiff's side and it's the plaintiff's side going for the big awards, possibly not related in either the amount of award or the actual defendant which is the subject of complaints about tort law. The insurance company isn't going to have much luck crying poor, or injured, and must look for those who are not swayed by counterfactual arguments. They'd like engineers.
When my wife asked for a break from a jury call because she is a teacher and had an AP class coming up and offered to swap for a summer jury pool, the jury organizing person said if they did that, they'd have juries full of teachers in the summer. Why that was a bad idea was not stated, but the court figured it was. So something is going on besides the belief in infinitely interchangeable citizens doing the same thing no matter their background.
I was called but did not sit on a criminal case--my wife sat on a murder--and believe everybody takes it seriously. But not everybody's idea of seriously is the same, and attorneys think they can tell the difference and stack things their way.
To the extent that is true, we have the possibility of getting, by design, unjust results.

Posted by: Richard Aubrey at July 11, 2003 08:13 AM | PERMALINK

The question remains whether payout caps have any effect whatever on the costs of insurance. A recent study on insurance finances suggest that in fact it will have none, because the cost of insurance is tied to insurance company investment practices, not their expenses. The interesting thing about the most visible part of this debate is that it's being cast as a fight between trial lawyers and doctors. The insurance companies, who are very much an interested party, and more responsible for the problem of medical malpractice insurance costs than most stories acknowledge, are safely off the field of contest.

Posted by: Ulrika O'Brien at July 11, 2003 08:15 AM | PERMALINK

First, the attorney was picking, to the extent he could, jurors who could be swayed by appeals to emotion and not by facts. That is to say, to get the result he wanted regardless of facts. That's his job, I suppose, but it would be silly to pretend it doesn't happen. Second, he was suing somebody who had nothing to do with the issue at hand. That's not in a search for justice or punishment of the guilty, but for money.--

Psst...that's the jury system, my friend. I still don't understand what your complaint is, or why it has anything to do with medical malpractice awards, which are less frequent than they used to be, and the relative dollar amounts of which are falling, caps or no caps.

The kicker is, you're not even talking about a malpractice case. Every lawyer does this, prosecution and defense - you push the case likely to get you the best results, you choose the jurors most likely to be swayed by factors outside the presentation that fall your way, in short, you try to turn the tables your way. It's what happens when you let people decide a case, like it or not. It's a valid complaint, but it has shit all to do with malpractice awards - do you complain when a jury is overly sympathetic to the defendant and lets them off lightly?

I'd hope you were.

Posted by: jesse at July 11, 2003 08:25 AM | PERMALINK

My imitation of every argument Richard Aubrey has ever made or ever will make:

People are like this, so that's why things need to be this way.

I know you say people are like that, but they're like this, and I know because once a buddy of mine saw one walking down the street.

I never mentioned people like them, you're missing my point: people are like this, and I know because I lived in a brick building once and the person living across the street was in the tropical fish business and they imported and exported sometimes with this lawyer we knew from the lodge and he told this lady on social security that she had to do that and 10 years later she still owns that same guppy but he's had to move to Newark.
People are like this.
They do that.
The only solution is to make people do this.

Posted by: Tim at July 11, 2003 09:40 AM | PERMALINK

How are caps on medical malpractice payouts different from sentencing guidelines, other than the obvious civil vs. criminal issue, or guidelines, say, tripling damages under anti-trust, or whatever? Saying "a jury can't award $1 billion for pain" isn't much different than saying "a jury may not issue sentence of life in prison for petty theft."

Juries, contract violations, and criminal procedures have little to do with the market. The market involves voluntary transactions amongst free citizens. Once you are in court, there is nothing voluntary about the whole affair. The market works because people are trading - giving value for value. This guarantees that all transactions are at least perceived to be in both parties interest. Juries surrender nothing to give massive awards.

We can also fix a lot of things in tort in general with proportional liability. If a jury decides that 10% of liability was caused by a party, that party doesn't pay more than 10% of the awarded damages. This reduces the "sue the back seat guy" phenomenon because the jury would probably rule that he is, say, 1% at fault, and so his deep pockets wouldn't have to pay everything, just his 1%.

Posted by: rvman at July 11, 2003 10:06 AM | PERMALINK

"In Michigan, they stretch and stretch and stretch to get a Wayne County jury. Are they different from an Ottawa County jury? The attorneys think so."

I am not without experience in with this, Mr. Aubrey, having litigated venue issues, mostly from the defense side, in Michigan for 25 years or so. Yeah, residents of Wayne County (Detroit) tend to have a little different outlook on life than the farmers on the other side of the state in rural Ottawa County. However, it is almost impossible to bring a case in Wayne County unless that's where the alleged tort occurred. And in neither venue are you likely to recover on a frivilous claim. Are you going to argue that every place in the United states ought to be exactly the same? Otherwise, I don't see the problem.

Posted by: rea at July 11, 2003 10:09 AM | PERMALINK

Clarification - courts are a corrective to market failures. I'm not claiming courts aren't important to a functional market, all I'm claiming is that trying to treat the courts themselves as a marketplace is a false analogy.

Posted by: rvman at July 11, 2003 10:10 AM | PERMALINK

Well, yeah, rea, ideally, the exact composition of the jury shouldn't matter. Ideally, no matter who the jury is, they would rule, accurately, based on the evidence, who is at fault and award damages which accurately reflect the actual damages suffered by the plaintiff at the hands of the defendant. Unfortunately, in the real world, juries bring their "outlooks" or prejudices or preferences into the jury room with them. To the extent that the rules can strip away the possibility of emotionality from the proceeding, rules are a good thing.

Venue shopping is obviously an issue - the OJ case is an example where it was probably decisive, on a criminal matter. If some representative body which represents everyone's interest on both sides throughout the region in question can decide issues which are likely fraught with emotionality, like "how much is pain worth?", from behind a veil, then maybe they should.

Posted by: rvman at July 11, 2003 10:18 AM | PERMALINK

By golly, Rea, that's the answer.
The reason you continually mischaracterize my points is....habit. Habit from your job.
Now, since we agree that Wayne County jurors are different from Ottawa County jurors, then we can guess one of them is likely to give a plaintiff more, and since plaintiffs' lawyers like to stretch toward Wayne, it must be that plaintiffs' lawyers think they'll get substantially better results there.
I didn't say, or even imply, that things should be the same everywhere, but if one is looking for justice--sorry to mention that term to an attorney--there are some differences we could do without.
Racist juries, for example.
Moron juries, for example. Some years back a guy shot a nun in Detroit and got off for the usual reasons. When one juror was asked about the ballistics, she replied that she wasn't a Catholic and couldn't be expected to know about that.
We can do without that.
We can do without zillion-dollar settlements to some guy who discovered his BMW or whatever it was had been repainted.

Posted by: Richard Aubrey at July 11, 2003 10:19 AM | PERMALINK

Rea, I want to agree with you, but I think you are getting a little to attached to the concept that frivolous cases don't cause problems. You are correct, truly totally baseless cases rarely go anywhere in the long run, though often they suck up a lot of money along the way. But there are a large number of mostly baseless cases which can cause a lot of trouble (in the form of time and money) for lots of innocent parties.

There are probably very few civil cases where you could predict the outcome with 95% accuracy. But even if an insurance company could predict that they had a 95% chance of prevailing in a case, they still might settle because they did not want to risk a multi-million dollar hit if they lost. Attorneys know this, and will bring in every tangentially related party in the hope that enough of them will settle to make it worth it. A 5% chance of winning is frivolous in most people's minds, but it may be a great opportunity to make some money for certain lawyers.

Posted by: Sebastian Holsclaw at July 11, 2003 10:31 AM | PERMALINK

Richard, I know that you're going to say I'm mischaracterizing your point because I disagree with you, but that bad juries get chosen is not an indictment of the jury system. That stupid people exist is not an indictment of the jury system. You can argue for more thorough vetting, but your argument turned from how terrible lawyers are to what bad people jurors can be. Can juries make awful decisions? Yes. However, since computers can't make judgments for people yet, it's a risk you take into account.

Still, none of which is an argument for malpractice caps.

And ryman - the reason you don't put malpractice caps on is because medical injury varies so wildly. The same mistake might result in internal bleeding for a couple of days or an infection that results in the liver needing to be removed.

Malpractice works the exact same way that every other bit of criminal law does, which is only a problem for some when it affects businesses and bigots/racists (tort reform and hate crime laws).

Posted by: jesse at July 11, 2003 10:31 AM | PERMALINK

A 5% chance of winning is frivolous in most people's minds, but it may be a great opportunity to make some money for certain lawyers.--

The chance is, at best, .9%.

Posted by: jesse at July 11, 2003 10:32 AM | PERMALINK

Jesse, I'll say you're mischaracterizing my points because....tada, you're mischaracterizing my points.
I did not argue in favor of caps, although I think the argument for some limitations is good. I began by addressing pain&suffering awards. Not medical malpractice. Some airlines are sued by live people on behalf of dead people for the pain and suffering supposedly suffered by the late lamented passengers who were probably apprehensive just before the plane hit the ground. That's pain&suffering and has nothing to do with doctors.
One not-too-bright poster asked if anybody really thought a big chunk of money was worth going through life without one or another limb. That's stupid. The question doesn't arise until said limb is gone, and the question is not the choice but the compensation. There being no choice by that time. Get it?
That there are dumb jurors was not an indictment of the jury system, as you damn' well know, but examples of how people differ, in pursuit of the argument that attorneys try to get those who differ from the rational in hopes of getting a judgment in excess of what the facts might justify. In the case of the murdered nun, it worked. The perp got off.
I don't know how choosy you have to be in Alabama to bet on getting a zillion dollars for a repainted Beemer. Probably not very.
The foregoing being the case, the argument that frivolous or totally unjustified awards are not an artifact of energetic and unscrupulous attorneys does not stand.

Posted by: Richard Aubrey at July 11, 2003 11:17 AM | PERMALINK

Richard,

I think you have an unrealistic view of how often a painted BMW comes up in court, for instance. You're being a bit ridiculous.

As usual, you're making no sense and mischaracterizing what other people are saying, and then accusing them of the same. Your argument is all over the place, and makes basically no sense. However, we all know that won't stop you from trying to make it, so by all means, tell me how I'm mischaracterizing you now.

Posted by: John Yuda at July 11, 2003 11:39 AM | PERMALINK

John, you make me tired, but at least I don't feel as if I have to shower.
My argument is all over the place in your view because you "knew" what I was arguing about and thus any distance from that amounted to being all over the place.
My argument is pretty concise, in that pain&suffering awards are a crapshooter's idea of a really, really unpredictable game. And I explained why I thought that. In addition, I explained what I thought the mechanisms were, easily swayed jurors sought by plaintiffs' attorneys. My use of jury-shopping examples was to make clear that people do vary and that jury shopping in pursuit of the most useful variations happens, which demonstrates that even plaintiffs' attorneys know we're not infinitely interchangeable good citizens doing the rational right thing.
In other words, unjustifable awards are sought by plaintiffs' attorneys by several mechanisms.
And claiming that it's the right thing happening for the right reasons on all occasions clearly isn't happening.
So, there might be an argument for a different view of pain&suffering awards.
I'd make sure the economic compensation was generous. Loss of future income should include inflation, retirement plan increases, equity built in a business if the plaintiff owned a business, and otherwise making him whole in an economic sense.
There ought to be a cap on the award for being really, really distressed. If there is not, then there is no rational limitation. None. A mill for the loss of a leg on top of economic compensation? Why not fifty mill? This is not a rhetorical question. If a mill is good, why is fifty mill too much? Presuming you think it is, I mean. If you don't, what would you think excessive?
Punitive damages ought not go to the plaintiff and the attorney ought to be compensated only reasonably. I don't know where they'd go--besides the federal treasury--but I'd think of something. If you want to punish a big corporation because you haven't caught any flies whose wings can be pulled off, fine. But the plaintiff ought to be taken care of by compensation and pain&suffering. We'll see how anxious people are to punish a big corporation when they themselves don't benefit.

Posted by: Richard Aubrey at July 11, 2003 12:47 PM | PERMALINK

Richard,

I fail to understand how jury shopping means plaintiff's attorneys are going after "unjustifiable rewards." It's a ridiculous leap of logic. To begin with, the defense attorneys also have a say in jury selection. Second, I would argue that the plaintiff attorneys just want to keep people like you off the jury since you seem hell-bent on never giving anybody a punitive judgement for anything.

Your argument is all over the place, and it contains ridiculous leaps of logic. Either that, or you've interviewed every lawyer in the country and determined what their motives for every action they take is.

Posted by: John Yuda at July 11, 2003 01:04 PM | PERMALINK

Yeah, an attorney might want to keep me off a jury for a number of reasons. I don't give feelings primacy over thought. That's the biggie.
I don't have to interview every attorney. I just have to know that there is such a thing as jury shopping. I also know that the plaintiff can choose--if he can think of a reason--the venue of the trial. If there is any slightest connection between the defendant and some enterprise in Wayne County, here in Michigan, that's where it will go. The defense doesn't get to choose, say, Ontonagon County instead.
If that weren't happening, it wouldn't be a question.

What makes you think I am against punitive damages? I said that, after being taken care of by economic compensation and pain&suffering, the punitive damages shouldn't go to the plaintiff. After all, punishment is the goal of punitive damages, right?
So what does in matter in pursuit of the goal where the money ends up?
And have you figured out a rational way to limit pain&suffering? Is there a maximum? What is it, in your opinion? And what reason would you give for not, say, doubling it?

Posted by: Richard Aubrey at July 11, 2003 01:37 PM | PERMALINK

"A 5% chance of winning is frivolous in most people's minds, but it may be a great opportunity to make some money for certain lawyers."

Sebastian, this can't work. Say it takes $10,000 to work a case up--a conservative figure. If you win 1 case in 20 (5%), you need to recover at least 600,000 in that one case to break even, assuming a 1/3 contingent fee. But only a rare handful of cases are worth as much as $600,000--I've seen death cases that settled for less than that. And the hypothetical attorney taking 5% cases hasn't even begun to pay his secretary's salary, much less his own. Not to mention the fact that if you can't count on these things working out with mathematical precision--if you take 5% cases, you might well go 0-40. No attorney I've ever encountered takes 5% cases deliberately, although some maybe get taken by miscalculation.

Someday you'r going to have to tell me what kind of law you practice, because you're a smart guy, and an attorney, but your take on the practicalities of litigation is so different than what I encounter. Some of the difference may be that you're in San Diego and I'm in Grand Rapids--in Michigan, for example, chasing the "deep pocket" doesn't work very well, because the jury apportions liability according to the relative fault of the various defendants. Similarly, despite what Aubrey claims, venue shopping in Michigan is very difficult--ordianrily, the only way yo get to sue in Wayne County is if the tort occurred in Wayne County.

Posted by: rea at July 11, 2003 01:39 PM | PERMALINK

Incidently, Aubrey, I strongly suspect your story about the nun shooting in Detroit is an urban legend--I sure don't remember any case like that, and it is the sort of case I would tend to remember. Wayne County doesn't have a particularly high acquittal rate in criminal cases as far as I can tell.

Posted by: rea at July 11, 2003 01:45 PM | PERMALINK

I work in insurance subrogation. 95% of the work is contingency fee. I work with a senior partner whose specialty seems to be taking loser cases and beating the other side into submission. He's quite good at it.

Posted by: Sebastian Holsclaw at July 11, 2003 02:17 PM | PERMALINK

Just a word on caps.

They may well backfire.

When I was in grad school I had a micro-econ. prof. (Dr. Greg Pogarsky, who I believe is now at SUNY) who had been an attorney in a previous life and who was very interested in the work of Tversky, et al regarding how and why people make sometimes irrational economic decisions. He, and some colleagues, applied the various relevant theories and hypotheses to jury processes, among other things legal.

As it turns out - based on evidence from CA and from mock juries - the caps serve as a sort of signal to juries and awards tend to move upward towards the cap. This increases the amount of the median award, though, of course, average awards may show less of an effect because a cap reduces some of the high end outliers.

For example, there is a cap of $250k for pain and suffering. The jury is informed of this fact.

A whiplash case is presented. There is some evidence that some pain and suffering has occurred (albeit relatively minor).

A mock jury that had not been informed of the cap would award something like $10k for P&S.

A mock jury informed of the cap would tend to award something in the neighborhood of $18K.

The phenomenon observed in the mock juries is also borne out in real life juries ; although it is admittedly difficult to control for all variables across regions. Still, the sample size in the studies that I am aware of was sufficiently large and the disparity of award size between cap and non-cap states for similar type cases sufficiently significant that one must consider that caps are indeed responsible for increasing the size of the average award for P&S.

Time interupted series in states that implemented caps - adjusted for inflation and other variables - also tend to confirm that typical awards go up when caps are in place.

Something must be done about the civil system, but caps may not be the answer.

Posted by: E. Avedisian at July 11, 2003 02:23 PM | PERMALINK

Some airlines are sued by live people on behalf of dead people for the pain and suffering supposedly suffered by the late lamented passengers who were probably apprehensive just before the plane hit the ground. That's pain&suffering and has nothing to do with doctors.--

Name some of these cases, please. You keep bringing out apocryphal cases with no reference to their actual existence, whether they ever got to a jury or even a settlement, where they happened, when they happened, etc.

I can keep referring vaguely to cases I've heard about that put a different spin on this situation, but that would be *pointless*.

--That there are dumb jurors was not an indictment of the jury system, as you damn' well know, but examples of how people differ, in pursuit of the argument that attorneys try to get those who differ from the rational in hopes of getting a judgment in excess of what the facts might justify.--

You mean that people are different from each other, and no person (even you) is purely objective? Richard, that's the nature of human existence. Facts are interpreted through the lens of personal bias and experience - otherwise, there would be no politics, no debate, no disagreement on anything. Your argument is even more incoherent than I thought it was. Lawyers play to a jury, because juries are people and 12 different people can react to the same factual evidence 12 different ways. You're desperately clinging to this idea of "objectivity" that any first-semester philosopher could tell you is flat impossible.

--The foregoing being the case, the argument that frivolous or totally unjustified awards are not an artifact of energetic and unscrupulous attorneys does not stand.--

Richard, you're still vacillating around these vague spin points. "Energetic" is an empty word - *any* attorney should be energetic. The simple fact of the matter is, you're not levying any charge based on facts in evidence, but simply a preexisting bias reinforced by vague references to things that may or not support it, but for which you provide no basis or context.

You have yet to convince me in any meaningful way that final awards (not just initial jury awards, but final awards pared down in negotiation after the fact) are significantly and seriously overblown, as you say. All you've convinced me of is that you think there's something wrong with the jury system. Bully for you.

And, of course I'm misrepresenting your point - you keep not having one after people get done addressing each successive one.

Posted by: jesse at July 12, 2003 07:29 AM | PERMALINK

What is it with Kinsley these days?

The current system is indeed a lottery, although not the kind one wants to win, because some victims get a huge settlement and others get nothing, owing to the vagaries of the jury pool and the ability of their attorneys to invoke sympathy.

Yes often life is not fair but there is nothing wrong with this system and "vagaries of the jury pool and the ability of their attorneys to invoke sympathy". Yes that is way of life, is it not.

And Kinsley knows this too. Some salesman/woman are better then others that has always been - I don't condemn this system at all. This is were caps "were never met to be" funny how bush didn't want to cap California Energy cost but wants to cap lawyer fees. SO let's cap CEO fees too while we're at it but I bet Bush wouldn't go for that either.

Kinsley's wrong on this one and I just said pretty much why but Kinsley knows he is wrong and I don't really know way he wrote this article.

Posted by: Cheryl at July 12, 2003 09:34 PM | PERMALINK

How about if society trades unlimited legal liability for mistakes, for the the previously granted privileges of not being criminally investigated or punished, other than by peers, for the harm you cause, and the elimination of job protections (why can?t I choose to pay someone without a medical degree to give me stitches, or get an eye prescription from one of those machines without paying a person?)

It?s dangerous and foolish when we renegotiate one aspect of a long term quid pro quo agreement without thinking about what we originally gave up.

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