Here there be monsters (socratic) wrote,
Here there be monsters
socratic

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I'd like a raspberry torte, with a dab of whipped cream on the top, dusted with sugar, and reformed

If everything goes right this November we will have a trial lawyer as our vice-president within 6 months. This is not the Republicans worst nightmare, but until a lesbian abortionist who likes the wacky tobaccy works her way on to the ticket it's close enough. Trial lawyers have long been the bane of big business and its group of stooges known as the GOP. Tort reform was a popular topic around the turn of the century, before 9/11 happened and the Republicans felt that they should focus on shredding our civil liberties and sending our young men off to die in foreign lands while they had the chance. It's tough to try and reform the civil litigation system AND soak the desert sands with American blood at the same time; you need to have your priorities. Anyway, with the emergence of Edwards as a potential replacement for Dick Cheney the spin machines have sprung into action and tort reform is resurfacing as a priority. Edwards was involved in some lawsuits over cesarean section and cerebal palsy that made him enormously rich and also sharply increased the numbers of cesareans performed in hospitals throughout the country. One small problem though, medical studies have shown that there is in fact no negative correlation between cesareans and cerebal palsy. Whoops.

Now I'm not ready to indict Edwards over this, because it's quite possible that he believed that not performing a cesarean after a certain period did indeed increase the danger of cerebal palsy. If he did it in good faith thinking he was protecting babies, well who can blame him for that. On the other hand, he made $60 million. From malpractice insurance for doctors who were making reasonable medical decisions, not wanting to perform major surgery on a woman to prevent a miniscule (actually non-existant) chance that the baby might contract a neurological disorder. There's something wrong with that. Then there are the even worse cases. The cases where lawyers sue in a class action suit, pocket millions, and the people in the class get a coupon or a $.55 refund. The lawyers act in proxy for customers and they get virtually nothing in return while Mr. smarmy pockets millions and the companies don't really address the problem.

There needs to be some sort of reform to this system. It is malfunctioning. The Republicans plan is not the answer. It pretty much eliminates (or at least severely caps) punitive damages, thereby preventing a John Edwards from getting rich off Cerebal Palsy cases, but also providing far too much protection to companies guilty of wrongdoing. If we do this then companies will have virtually no incentive not to do wrong. If they get away with it they pocket the profits of their evil acts. If they get caught then they have to pay for the damage they cause, but it is quite likely that they'll still walk out winners. It takes away a serious stick from the kind of corporate sleazeballs who laughed about robbing Grandma Millie while they worked for Enron. You can't do that.

The other major suggestion is to switch to a loser pays system, where if you file a suit and you lose you have to pay the other side's costs. This wouldn't work either, because then no poor person could sue a rich company without risking bankruptcy. Corporations spend millions on legal fees and individuals simply can't afford to reimburse that. I think that a decent alternative would be to allow juries to assess penalties to entites who sue frivolously, with judge oversight to prevent someone from being assessed a penalty just because they're obnoxious. It is possible to sue on just and/or reasonable grounds and lose. You should not have to go broke because you didn't win. On the other hand this would hopefully prevent people from suing on silly grounds just to try and get a penalty. We could even make the lawyer partially liable if he was working on contingency.

But we still have the problem of the lawyers getting unjustly rich. I think the solution to that is to change the way class action suits work. Make them opt in instead of opt-out, or eliminate contingency fees of like %33.3. Cap the lawyer's award at something like that, and then set a billable hour rate of like $200 an hour that the lawyers could recoup if they won. You could allow for a smaller contingency fee, something in the %10 range, but pay lawyers for the work they do, not just for figuring out clever new ways or reasons to sue. I think a lot (relatively) of lawyers are getting rich by gaming the system and fucking over their clients, many of whom never even volunteered to BE their clients in the first place. We need to try and prevent that.

Another possibility is that instead of giving punative damages to the winner of the case we could allow the winner to pick a related charity. So if you win punative damages for asbestosis you could assign them to a hospital's respitory ward, of if you won punitive damages for an unsafe car you could put the money into a consumer advocacy group.

I will admit that I don't know quite enough about the law to determine what the best type of tort reform would be, but I do think this is another area that shows the difference between the parties. The Republicans want to cripple our legal system and the rights of consumers not to be shat on by mega corps. The Democrats want to sit by and let things continue as they are because they get lots of trial lawyer money. They should make tort reform and issue and offer a sensible plan that reduces the ability of people to game the system AND protects the power of the civil system to keep wrongdoers in line.

P.S. Another thought I had was to loosen the power of the L.L.C. to protect its members from criminal investigation. If a CEO knowingly allows a dangerous product to go to market he should be held criminally negligent. The problem with this is who sets the standard? Take cars, for example. Any model of car that meets with any retail success is going to kill people inside and outside of it. That's just the nature of automobiles. We, as a society, agree that economically affordable cars are worth the loss of life (and cars save lives too, by helping people drive to the hospital or check in on and care for aging relatives etc...) So where would the line be drawn? It's easy to say that cigarette manufacturers and the guys who let the Corvair on the market despite the fact that it tended to roll over and kill people inside should be prosecuted, but where is the line?

P.P.S. What are your suggestions for how we can reform our mess of a legal system? Bonus points if your solution involves Kate Beckinsale totally making out with Angela Lindvall.
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