[FoRK] Challenge for Zee and Stephen

Stephen Williams sdw at lig.net
Mon Jun 30 11:25:04 PDT 2008


Jeff Bone wrote:
>
> On Jun 30, 2008, at 12:29 PM, Stephen Williams wrote:
>
>> I don't see how there is an imbalance in favor of the little guy.
>
> Oh, come on.  This is the zero-order insight.  If you don't have this, 
> then we could waste petabytes on this issue and never have any kind of 
> agreement at all.
There is certainly not always an imbalance in favor of the little guy.  
Few people can afford to take time off, let alone pay an attorney if 
they can't handle it on their own.

The situation you mention here:
> I was parroting some stats that my aforementioned lawyer-cousin 
> mentioned to me a month or so ago while visiting.  To be a bit more 
> specific, I believe the context was jury trials on toxicity cases.  
> IIRC, interestingly in med-mal the doctor wins about 2/3 of the time 
> (perhaps reflecting an embedded bias that doctors are essential and we 
> shouldn't put them out of business with this sort of thing w/o serious 
> cause) but when he loses the punitive damages ran into the millions on 
> average (reflecting the systemic weak-hand bias I mentioned earlier.)  
> (Again, this is anecdotal recollection.)
Is not a problem with the court system per se, or filing methods, or 
rules of evidence, etc.  It is obviously, to me, a problem with the 
rules, or lack of rules, about the award amount.  I'm sure that the 
argument was lifetime disability or death, and something about how much 
doctors made, and something about making sure this doesn't happen 
again.  In the medical field, crap happens, with or without mistakes, 
and at some point every doctor is inexperienced or running into 
something for the first time.  It is the award amount that is the 
problem, not necessarily the rest of the system.

Going back to your bond suggestion, I would bet that juries, knowing how 
much skin the plaintiff has on the table, would be even more likely to 
rule for them to avoid further suffering.

Tort reform has seemed to always be talking about limiting damages.  
That makes sense.  Juries, off the street with no training, are going to 
naturally over give.  They have little rational perspective of realities 
or profit.  In medicine in particular, any success is a bonus, not to be 
counted on as a sure thing.  People are confused.  So fix that.

If doctors were known to not make much money, and everyone ran on thin 
margins, like public (below university) education, juries wouldn't award 
so much money.  Since people know that, for instance, drug companies 
make billions, they may think that anyone who suffers from a reaction, 
for instance, is due a large amount.  That may or may not make sense.
> The reality is that it's assumed that the plaintiff is the little guy, 
> and the deck is stacked heavily in his favor.  Which leads to all the 
> excesses and abuses mentioned...  to see this stacking, consider the 
> usual difference in evidentiary standards in civil and criminal cases.
This is simply inherited from the fact that you only had to convince the 
local English judge about who was probably in the wrong.
Actually, it makes sense doesn't it?  Civil lawsuits are mostly A) 
complaints that someone has broken the law and therefore owes, B) 
requests that someone be made to do or not do something (chancery), or 
C) disagreements about interpretations of something, sometimes in A.  Is 
there some reason that an honest disagreement about whether a contract 
is/is not valid, or something is or is not a fair business practice for 
instance, should be weighted one way or the other?  Should determining 
whether there should be a restraining order be biased one way or the 
other?  Must you have overwhelming proof to succeed?

You are thinking extremely narrow mindedly here.  Criminal cases have 
such a high bar because it is the state that is imposing a 
probably-severe penalty.  When two parties come before the court, there 
should be no bias in evidence, other than >50%.  Otherwise, you would 
have bad actors reversing situations just to be able to file first to 
get the advantage in court.

In the case of an unfair charge, for instance, if I don't pay, the 
debtee can sue me.  If I want to reverse the situation, all I have to do 
is pay and then sue to get it back.  Heck, all I really have to do is 
file and say I'm planning to pay, but I'd like the court to decide I 
don't have to.  Easy manipulation.  People will race to court to file first.

sdw
> jb



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