[FoRK] The Platform

Stephen Williams sdw at lig.net
Mon Jun 30 11:41:53 PDT 2008


Jeff Bone wrote:
>>
>
>> Think it through, Stephen.  Really.  Under the correct 
>> parameterization of this idea there's absolutely no chilling effect 
>> beyond that impacting the meritless case, which is precisely what 
>> should be eliminated or reduced.
>
> Another way to put this is:  the ONLY people that lose under the 
> proposal I've offered, with appropriate, negotiable variations and 
> caveats, are litigators --- and then they only lose to the extent to 
> which the presently parasitize the system.  For the legitimate 
> plaintiff, particularly the non-wealthy plaintiff, it should actually 
> *improve* the system in desirable ways:  weed out low-end and bad 
> attorneys, create broader access to attorneys w/o up-front pre-trial 
> costs, etc.
If that's what you wanted, why don't you limit it to attorneys who are 
working on contingency and asking for more than a certain amount?  Why 
screw up everyone else?

>
> Care would have to be taken if a "floor" on damages sought was used as 
> the test to determine whether a plaintiff's bond was required to be 
> posted;  if you make the floor $1m, then the statistical mode on all 
> suits filed is immediately going to become $999,999.  If $500k, then 
> $499k.  I like the idea of letting the requirement for and amount of 
> plaintiff's bond be at the sole discretion of the judge based on a 
> pre-trial hearing.
>
> And again, this doesn't apply to the kinds of civil suits in which one 
> is seeking monetary damages, not small claims or even small "large" 
> claims.  Appropriate exclusions can be made to ensure that the idea is 
> applied only where the effect is desirable.  The goal here is to 
> reduce the parasitism of the courts and society by disabling a whole 
> class of professionals whose sole purpose today is to exploit the risk 
> arbitrage inherent in our present, unbalanced system of risks and 
> rewards in tort.
I think that rationalization of award amounts proportionality and 
reasoning is what needs to be done.  I don't think I could go along with 
much of the rest of what you have suggested re: change of the civil 
court system.  All of it seems very easy to abuse and counterproductive 
generally.

Medical claims in particular are a tough problem.  Personal injury I 
think stems from the same issue of lifelong quality of life impact.  
What other areas are similarly abused / difficult?

I read, and I think we've discussed, the practice in China where if you 
kill a breadwinner of a family, say in a car accident, you become 
responsible to support that family from then on.  Extreme?  Probably, 
however it is kind of rational and amounts to the same thing as winning 
a multi-million dollar settlement.  (I'm not advocating it...)

sdw
> jb



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