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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.


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.

8.  Trial

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...

9.  Appeals

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).


  1.  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.
  1.  Strict enforcement of economic sanctions as well as professional sanctions against attorneys who delay litigation unnecessarily or withhold requested documents.
  1.  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.
  1.  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.
  1.  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.
  1.  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.
  1.  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.

Originally posted to davefromqueens on Sat Jun 23, 2007 at 11:52 AM PDT.

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Comment Preferences

  •  wonder if the media will report these stories? (7+ / 0-)

    Oh, they won't.  Wonder why not?

  •  the invisible hand (2+ / 0-)
    Recommended by:
    WayneNight, Grover StL

     and mostly what they wont tell you is that without accountability the market incentives to act competently and responsibly are destroyed - instead we can have a country where a woman can die in an emergency room and despite everyone literally calling, screaming, jumping up and down for help - she can't get basic attention.

    This is the fate that awaits us all - unless we wake up.

  •  asdf (2+ / 0-)
    Recommended by:
    marykk, lemming22

    I want a justice system where a plaintiff who has been wronged is righted.  Simultaneously I don't want frivolous lawsuits.

    Having practiced law for more than 20 years I'd like to see a system of justice which encourages people to be reasonable and settle their differences.  While a small number see litigation as a potential lottery win many others see the legal process as a way of delaying or avoiding responsibility.  Like many other systems it mostly works--with some glaring exceptions.  I encourage people on both sides of a situation to deal with reality and not drag things out.  I'm afraid I've been doing this too long to endorse any of your suggestions other than the creation of more judges to handle more cases.  The amount of time it takes to get justice is itself unfair.

  •  Add to that list (4+ / 0-)

    the willingness of courts to ignore the jury verdict awarding relief to the plaintiff.  On appeal, the courts routinely reduce or overturn jury awards, most often in complaints of discrimination (disability, race, religion, etc.) against companies and the government.

    This runs counter to the basic concept in our Constitution's Bill of Rights that a jury of our peers is more trustworthy to render a fair decision than a judge.

    Forewarned, forearmed; to be prepared is half the victory. ~ Cervantes

    by Deep Harm on Sat Jun 23, 2007 at 12:54:31 PM PDT

  •  if you don't have transparency (0+ / 0-)

    and accountability in any given system, you are going to have corruption.

    for instance, there are people who have been working for twenty years to change states' laws to allow adopted persons to access their original birth certificates when they reach adulthood.  at the moment, only a few states allow this.  

    the adoption industry fights us tooth and nail because they don't wish their past conduct in obtaining babies for adoption to be revealed, amomng other reasons.  it would be bad for business.

    they have no accountability for the way they treated unwed moms of the past (and the   testimonies of abuses of unwed moms by the adoption industry are abundant)

    partly as a result of this and partly as a result of the fun/die  push to block access to reproductive control technologies, we are now seeing a rise in the very same maternity home movement that abused women thirty years ago but became dormant when r v w was decided.

    i fear for america's young women.  i fear`that there will be another generation of adoption ondustry casualities because the laws are written to protect the business of adoption, not the public.

  •  McDonald's Coffee (2+ / 0-)
    Recommended by:
    marykk, davefromqueens

    That story is way over used.  Especially when you consider the woman in question had a legitimate case.

    The Coffee that was spilled on her didn't just "burn."  I caused serious burns, in her groin area, that went down to the bone.  Not only was she hospitalized - as she would have been if she had tried to drink the coffee normally - but she will be disfigured for the rest of her life.

    Her lawyers initially wanted McDonald's only to pay the medical expenses.  However, McDonald's decided to be an ass about it, so, the lawyers started doing research, and came up with case after case of other people who had been seriously injured by McDonald's coffee.  It wasn't an isolated incident.

    Those were the factors that lead to the large award in that case.  I think they're justified, personally.  Yeah, if I spill coffee on myself, I expect to be burned.  However, I do NOT expect to be burned all the way down to the bone, and suffer permanant disfigurement.

    Businesses have a responsibility to sell products that are safe.  Period.  McDonald's didn't meet that standard, and then they wanted to go crying and whining to the media when they had to take responsibility for it.

    Sadly, no one in the press ever seems to cover the other side of the story.

    •  I know (2+ / 0-)
      Recommended by:
      marykk, WayneNight

      My 1st day of law school 4 yrs ago, the then Dean told the story and the entire facts,  Actually there were over 800 incidents prior to this one.

      And indeed as ridiculous as her claim seemed on the surface, it was actually very legit.  And mcdonalds changed their policy afterward.

  •  Set up for lawyers only (0+ / 0-)

    The legal system is set up for lawyers and not for anyone else.

    Stay away from it if you can. If you are forced into it, prepare to suffer.

    •  Yeah (0+ / 0-)

      just like those operating rooms are set up for doctors.  The difference is that in a courtroom the unlicensed are permitted to represent themselves, whereas no hospital will give them operating privileges.

      If you think you're too small to be effective, you've never been in the dark with a mosquito.

      by marykk on Sun Jun 24, 2007 at 06:57:12 AM PDT

      [ Parent ]

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