For decades, all we hear about from the corporate conservative media are a few stories about vunrt coffee at a McDonald's or pants at a dry cleaners. Somehow these stories are supposed to serve as justification for keeping out of court the thousands of legitimate tort lawsuits that are commenced or should be commenced against wrongdoers.
The untold secret of the legal system is that our system is designed to protect the wrongdoers and screw the victims. This must change.
I'll walk through some of the obstacles victims face and discuss the reasonableness + unreasonableness of these obstacles.
Problem 1 - LAWSUIT REQUIREMENTS
In order for a claim to be heard, certain statutory requirements are necessary. They may include stringent requirements of jurisdiction, a statute of limitations or a condition precedent. These requirements are generally fair on their face. However, we've seen RW judicial activists, most recently in Ledbetter, create requirements beyond the statute which keep legitimately filed cases out of court.
Problem 2 - Money
Simply put, many people can't afford a lawyer so they can't pursue their case. And those who sue big corporations or big government face a huge financial disadvantage and huge disadvantage in access to resources.
Problem 3 - Length of Proceedings/Motions
If a lawsuit is filed, you've heard of the phrase "the wheels of justice grind slowly." Well, that's an understatement. By the time you get through with complaints, answers, cross motions, and other legal haggling, it could be a couple of years before a plaintiff's legitimate tort claim even gets to the pretrial discovery stage. To help prevent this stalling by defendants, the system needs to be sped up.
Problem 4 - Discovery Dishonesty
Defendants are required, upon proper procedure, to turn over many documents that are in their possession. Very often these defendants fail to do so even though they are legally required to do such. These defendants believe that they won't get caught and often they are right, especially when they possess evidence that would lose their case.
Problem 5 - Defendant Stalling
Defendants usually have deep pockets. Often they make a bunch of ridiculous motions or engage in a stalling campaign in withholding documents hoping to wear out the plaintiff. These tactics, which could be halted if courts would sanction defendants + their attorneys who engage in this crap, often force legitimate plaintiffs to give up.
Problem 6 - Ridiculous Legal Standards
The special interests, most notably in medical malpractice cases, have created ridiculous obstacles which become almost impossible to attain. For example, you can have a doctor knowingly admit a screwup only to find some RW judge dismiss the cause of action by asserting that the doctor followed the "customary" procedures in his area.
We see these ridiculous legal standards in civil right cases, false arrests, (Get this, RW judges say that if the police officer believes he had probable cause (even though he didn't) you have no case), 1st amendment cases, etc... There is no problem with some standards and certain legal elements but much of what the Rehnquist and Roberts court have done is continually move the bar to make it almost impossible.
Problem 7 - Summary Judgment
There are indeed many cases where summary judgment is warranted. HOwever, because of the way our legal system works, summary judgment is often granted for defendants when it should not be. It is possible they hid the facts, had defendants lie, etc... so when judges "search the record" lo and behold they find a reason to dismiss the case even though a trial would help determine the veracity of a defendant's claims.
Also, some judges are simply overloaded with too many cases so they "clear the calendar" by throwing out a few suits.
Wow so you are the 1 in 20 who make it to trial. That's right, more than 95% of lawsuits filed never go to trial. Bet the RW media never told you that. But even though you get to trial, that's no guarantee that you the plaintiff win (nor should it be). Again you may face additional obstacles in terms of what evidence you can get in, witnesses you can depose, etc...
So you won at trial. The jury heard the evidence and ruled for you. Think again. Now the big Defendant appeals your case. And then some RW judge ignores the jury and throws out the verdict on some manufactured "technicality."
These are the real problems people face. Some of you may be familiar with them, others not. Now here are some solutions or real tort reform (not the tort regression of the right).
- Make it harder for appellate courts to overturn jury damage awards by making the standard for reversal "no reasonable jury could conclude as such." Should an appellate judge abuse this standard, we can make it even more stringent.
- Strict enforcement of economic sanctions as well as professional sanctions against attorneys who delay litigation unnecessarily or withhold requested documents.
- Change the standard in medical malpractice to one that is based mostly on the results of the doctor's actions, not some artificial "custom or practice" which allows doctor F-ups to get away with the F-ups.
- Strip away immunity for public officials in cases where a jury determines, via a special charge, whether or not the behavior of the public official "shocks the conscience" or was "grossly negligent." When govt officials who abuse people are held personally liable as well, the abusive behavior will decline.
- Further pierce the corporate veil by allowing plaintiffs to go after the assets of corporate directors who were involved in the malfeasance or nonfeasance instead of letting these corps shield their assets.
- Have more courts to hear the cases. Too often judges "clear the calendar" by dismissing hordes of legitimate cases because their schedules are overburdened. This to me is unconscionable.
- Loosen up these riduclous legal standards to make it easier for victim/plaintiffs to have their day in court.
My Final Thoughts:
I want a justice system where a plaintiff who has been wronged is righted. Simultaneously I don't want frivolous lawsuits.