A View From The Press Box

I'm not sure much can be done to ensure 'sensible litigation' as long as the courts continue to entertain frivolous lawsuits.

It seems most lawsuits are filed with the expectation of a settlement, as opposed to a bench or jury trial, so in essence, it really has become more of a lottery system.

Your own words illustrate the cause of the problem--an alleged "right to fair compensation if they are injured on someone's property or because of someone's mistake."

Nobody should have a right to be compensated by a thrid party merely because they were hurt on that party's property or because of that party's mistake.

Compensation from a third party should become due only if that third party owed the injured person a duty of care, and failed to fulfill that duty.

Anybody who wants to be compensated for an injury that was not due to someone else's failure to fulfill their duty of care should buy their own insurance (medical expense and disability and pain and suffering), or bear the costs themselves.

And the "duty of care" has to be reasonable-- the mere fact of an accident does not necessarily mean that care has not been exercised by some third party.

In answer to your question: "What can be done to make litigation more sensible and responsible?" One possible solution (tongue in cheek) would be to follow the "advice" from "King Henry the Sixth, Part II"

"The first thing we do, let's kill all the (trial*) lawyers". - (Act IV, Scene II).
*added for humor, not original text

Amen to MH's post!

People have come to view insurance and the legal system as avenues to gain yet another "entitlement--"that of the right to collect for what they perceive to be a wrong, regardless of who is at fault, and no matter how great their own involvement may be in exacerbating the loss.

Example...Claimant cuts across a lawn, although there are signs saying "No Trespassing - Keep off the grass."

Plaintiff trips over a sprinkler head that has not fully retracted following the morning irrigation, breaks his ankle, and sues the property owner and the landscape maintenance service, alleging an unsafe condition.

While not going into the intracies of this idiotic suit, the court rules in favor of the trespassing plaintiff to the tune of over $50,000, plus attorney fees.

As long as the legal system allows suits based totally without merit to be filed, and allows cases such as this to stand before a jury, which does not have a clue what should be done, we're not going to see any relief.

Add to this the lack of good faith and poor claims handling by some insurers and self-insureds, that makes people run to an attorney following a loss.

Notwithstanding all my years in the insurance business, and reasonable savvy of the system, after 10 months of haggling and fighting to get my bills paid following an auto accident some years ago, I was forced to do the unthinkable, and hire an attorney before the statute of limitations ran out.

Believe me, that was a rude awakening for one who believed in our claims system to the fullest!

In many states, a quick glance at the jury pool should give rise to great concern about the system. Most people with any significant intelligence don't appear to be sitting in that jury selection room. It appears most with any potential to excuse themselves have done so, leaving those with nothing to do and bored individuals to decide the fate of the litigants.

Change the rules. Set a table so that unless the loss is caused by gross negligence, the payment is commensurate with the loss incurred.

Have a separate table for pain and suffering, on a sliding scale, where a physician panel sets the parameters and not some arbitrary amount by how many times someone says "OW".

Just a view from the West!

SAM RESPONDS:

Great points, B.J., but just to address the jury system from my own experience. Having sat on a few juries, including two that actually went to the jury to decide, I came away very impressed with how seriously my fellow jurors were when it came to doing their duty. It is a gamble, I suppose, and you have to play the hand you're dealt, but from what I've seen, those who do serve do so with a sense of commitment.

Perhaps I have just been lucky!

BJ GETS THE LAST WORD:

Out here I have sat in the jury selection room with people who, frankly, admitted they were there only because they had either nothing better to do, were constantly grumbling about not being able to come up with a viable excuse to dispose of their jury duty, bored housewives and senior citizens who found it exciting.

Add to that list people I would be afraid to have sit on a jury of any significance, especially in a criminal trial.

In almost every instance, I have been challenged and dismissed from jury selection after seating, based on law enforcement affiliation or insurance affiliation. That has resulted in numerous lost days from work, simply to be dismissed because of what the opposing parties consider as perhaps a potential lack of objectivity.

Not factual, but their perception and they are entitled to their challenges. Yet the glassy-eyed man who sat next to me with what appeared to be little perception of reality was empaneled with no problem. Kind of scary, huh?

One of my all-time favorite (insurance-related) cartoons appears on the front page of a 32-year-old issue of the "Actuarial Review," the newsletter of the Casualty Actuarial Society.

A tall, elegant lady is standing with a balding gentleman at a cocktail reception, and she's saying: "In a way, I am kind of famous. But you've probably never heard of me unless you happen to travel in actuarial circles."

On balance, I'd rather raise the premiums than stop the suits.

Incidentally, we're going to need more lawyers for awhile, at least until the damages that were/are allegedly caused from the flawed and worse imports from the Far East slows down. One toy = one "occurrence" or all toys = one "occurrence"? Yikes!

What can be done "to make litigation more sensible and responsible" is exactly what The New Yorker is doing--trying by humor to make people realize there are limitations to this craziness.

Lawyers, judges, juries and politicians respond to public desires eventually, all in their own ways. Take DWI. There is a lot less of it today than there was 10-to-15 years ago.

If people sense (through education, humor, experience, etc.) that the legal system has run amok, it will be changed. It make take awhile, but it will be changed.

I think the fundamental problem giving rise to the plethora of frivolous lawsuits is the inherent unwillingness of individuals to accept responsibility for their own foibles.

Our libertarian response to child-rearing translates now into individuals with that "itsa all about me" attitude and a general unwillingness to accept fault.

Seeking remedy for an injury or damage should be considered when fault is evident by another party. The notion of contributory negligence needs to stand.

Dropping hot coffee in your lap should give rise to the exclamation--"how stupid can I be?"--instead of who else can I blame for my own stupidity.

When the culture of irresponsible entitlement ends, maybe we can see our way clear of this mess.

Of all the comments, no one mentioned the one major
solution--The' Loser Pays' Rule. We are the only civilized country in the world that does not have it.

Also, joint and several liability. It was passed in Pennsylvania, but our wonderful trial
lawyer governor would not sign it. And this bill was at 60 percent.

Bottom line is that the citizens of the U.S., as a whole, are not mad enough to do anything about it. How many even know who the local politicians are that represent them or even contact them?

When this changes, then the legal climate will change. It is way of life for the idiots.

After all, in our free and loving society, it is the good citizen's responsiblity to look out and care for the morons of society. They do NOT have to help themselves; we will.

Until our country changes our victim mentality, litigation will continue to run amok.

When something bad happens, we want someone to pay. In many instances, it's the wronged party's opportunity to "hit the lottery"! The insurance companies pay big and we all lose.

Maybe limits awards making them more reasonable would be a help.

I, too, like the idea of the Loser Pays Rule.

I have been excluded from all juries. Plaintiff's attorneys have told me they would never let a claims adjuster sit on a jury. (I know of some cases where adjusters have been empaneled, but it is rare.) I feel that I have been excluded from the judicial branch of government, along with my opinions on personal responsibility.

I don't think judges know about remedies anymore and wonder if it is still studied in law school. It may just be the the lawyer-dominated legislatures and the lawyer-dominant courts seek full employment for lawyers.

In nearly every field (i.e. Superfund) there are provisions which make sure lawyers get paid handsomely for litigating. Until the non-lawyers get a say in the making of laws, litigation will continue at a grand scale.

When California recalled Supreme Court justices and passed tort reform initiatives a couple of decades ago, there was a period when claims and damages dropped dramatically for about 10 years.

The insurance companies also got punished for high premiums by an angry populace. That same sense of anger does not seem to be present, although premiums, claims and payments have again climbed toward absurd levels.

My impression is that the general populace is satisfied with the system as it now exists, with a large minority of grumblers.