Rusty,
I think I agree with you across the board, in the sense first that there should be the least restriction possible, upon the rights of "access," to our court system, and that applies from the inception of the attorney/client contract through to the broadest leeway for the jury to arrive at a verdict that does complete justice.
In terms of attorney/client contracts, for example, in simple cases particularly with big damages, it should become more common that the plaintiff recognizes that he can negotiate a lower attorneys fee and would usually be successful. If the case is very complex or requires a significant investment, or if success in the case is risky, with the lawyer bearing the risk, then perhaps a higher attorneys fee would be appropriate. When tort reform legislation impairs the right of contract, it interferes with the client's opportunities to obtain representation and access to the courts.
Then, in terms of tort reform that would limit the jury's leeway to arrive at a verdict that does justice, such as caps on general damages, again these should be resisted. Our jury system has its faults. There are the occasional jury errors that become well publicized, like the hot coffee in the lap case. However, the 99 percent of cases in which the jury just does its job and arrives at a reasonable verdict are not sensationalized, and so we don't hear about the jurors' good work.
You haven't seen lawyers advertising for hot coffee cases, nor have we seen another one. I don't know the lawyer who prosecuted the hot coffee case. I can't imagine what inspired him to take it. But the answer to the question in terms of how to curtail frivolous lawsuits, I think, is found in part just in the fact that such lawsuits are almost never profitable, and lawyers, motivated like everyone else to turn a profit, should want to stay away from them.
There are also causes of action that can be brought against the unsuccessful plaintiff or plaintiff's lawyer, including "malicious prosecution" lawsuits. In some cases, such as contract cases, or property cases, there are rights to recover broader categories of costs and attorneys fees. Even in personal injury cases, the defendant can recover court costs, and there are also ways to create a right to recover certain other costs of litigation, including expert fees, as in California, where a defendant can send "requests for admission," and if the plaintiff denies them, it can confer upon the defendant the right to recover against the plaintiff the cost of proving the facts. I've never seen that done, but the remedy is available and would be appropriate to curtail frivolous lawsuits.
Our jury system is not perfect. There are errors, like the coffee case. Perhaps the most significant errors are those that the Innocence Project is uncovering in which it has discovered that good men have spent their entire lives in prison, only later to be proven by DNA analysis to have been innocent of the crime. But no one has ever come up with a way to determine justice that is better than the jury system. It is imperfect, but it is the best that we have available to us. We trust in our neighbors to do the right thing. Most of the time they do. Occasionally they don't. If the insurance industry can come up with a better system, let's hear it.
Ray
