[FoRK] The Platform
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
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...)
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