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RE: Disturbing New Trend

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This is a favorite topic of mine (I the interest of full disclosure I will
admit to frequently providing engineering services to attorneys). I have
zero doubt that the system could be improved. However, there are several
fallacies (IMHO) regarding litigation reform that seem to pop up frequently:

1) Loser should pay. This sounds good at first blush. However, consider that
accepted rule that you have a 10-20% chance of loosing a perfect case (and
rarely is a case perfect). Now here comes Exxon-Mobil (or choose your
preferred  large company) - We know we screwed up, but if this goes to trial
we are going to spend $25M defending the case. If you loose, you will be
broke for the rest of your life. Would you proceed with a 10% chance of
loosing everything? Most would settle for less than they deserve.

2) No punitive damages or class-action lawsuits. This says to me that it is
ok to steal small amounts of money or inflict small harms. Say your mortgage
company is charging you $1/month extra, you find out, and they say tough
luck. Are you going to sue them for one dollar? Just because the loss is
small, does not mean you should get away with it. lessening the bottom line
is the only speech large corporations understand.

3) Contingencies fees should no be allowed. First, don't kid yourself,
defense attorneys make just as much money as plaintiff attorneys, they get
it as small amounts per week as opposed to occasional lump sums. Second, see
#1. You can never guarantee a win, therefore with contingencies, no attorney
would ever take a case unless the plaintiff could fully fund it our of there
pocket. Should poor people have no access to the legal system?

4) Bogus lawsuits should not be allowed. Who decides? Right now it is the
jury. Who do you think would do a better job [Other than yourself :-)]?

I think (for the most part), people who work in the legal system believe
that most cases are reasonably resolved. Yes, you hear about the severe
miscarriages of justice (and they ARE too frequent), but it is not as bad as
it is generally made out to be in the media and anecdotal stories.

In summary, the legal system IS messed up, but I have never heard any
suggestion (other than small incremental changes), that would provide a
significant net improvement. Not to say such suggestions do not exist, but I
have never heard them. It seems to me that the key is improving the jury. I
am not sure exactly how this should be accomplished, however.

So lets here some suggestions that would improve things rather than
statements that the system is broke!


Eric Green, PE

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