T33driver wrote:
August,
As an airline pilot, my industry is a poster child for bad service, but in the end it gave the people and the politicians what they wanted--cheap, frequent flights affordable to the masses--not just for the affluent or business travelers like when we were kids. The system was never meant to handle 85% full aircraft system-wide day after day. Imagine how much smoother it'd go if fares were much higher and loads were at 50% or 60% which would smooth out delays and give the system margin for error--but that ain't what the people and the pols want. Like you, I have an insider's perspective on the industry I work in and empathize with the legitimate complaints of those who pay to use it and get a raw deal. Like any industry the legal profession has it's sheisters who make a fortune in an unethical manner, but I believe the majority to be upright professionals trying to do the best job for their clients. As someone not in the legal profession, my impression is trial lawyers are an easy target since absent tort reform, there's too much incentive for frivilous litigation--chime in here if you think that's an unfair statement. The system is bad but like the air travel system, it is what the people want until they/we make it otherwise. Kind of like the hometown pol that runs for congress, is a true believer in his party, gets elected, then when he gets to the cesspool in D.C. gets corrupted by special interests $$ and strong-arm party leadership apparatus--the freshman congressman hardly stood a chance to remain above the fray. Maybe there's a parallel here to the legal system the incentive there is now to sue...with tort reform there could be disincentive for many frivolous lawsuits and insurance health care and many other things wouldn't be so sky-high. Your thoughts?
Paul,
Thanks, very thoughtful post. Like many lawyers I have given some thought to these issues over the years as they apply to my profession. As with the airline industry, there is some evidence that the current American liability regime is, at least in broad outlines, what Americans want. For example, those big liability awards we keep complaining about are invariably awarded in jury trials. That means that a jury of those "real Americans" who ought to be running the country are the ones finding defendants liable and setting these awards. Further, the largest awards come from juries in Texas -- that well-known socialist welfare state -- and other jurisdictions where you would expect the spirit of independence to prevail. Indeed, the hoped-for purpose and effect of the most recent federally enacted tort reform, the Class Action Fairness Act, is to take national class action claims away from "real American" juries in places like Jefferson County, Texas and Madison County, Ill., which are so notoriously pro-plaintiff that class action litigation has become a major industry there.
Also, the changes that dhfan referenced in the UK and other places that are adopting elements of the American system are being made consciously because of a widespread feeling there that consumers and the public have not been compensated adequately for various injuries they have suffered. There is a deep belief that absent liability and lawyers, the little guy will get screwed by everyone from his local doctor and plumber to the largest corporations, and that belief is likely to prevent any serious erosion of people's right to sue.
The problems with the liability system exist not so much because of corruption as because they are complex and difficult to fix. Many lawyers feel that the liability system is broken inasmuch as the majority of claims brought are meritless and, less publicized but more troubling, the vast majority of people who suffer compensable injuries never sue. The number of suits being brought is about right, but they're largely the wrong ones. This problem cannot be fixed just by making it more difficult or expensive to sue; that would likely eliminate as many valid as invalid claims. Even the intuitively sensible rule of instituting cost-shifting (losing plaintiff pays defendant's expenses) would likely deter many valid suits. Therefore, the helpful reforms that we have seen in the past few years either eliminate often-abused bases for standing (e.g. the narrowing of California's Unfair Competition Law, which basically requires lawyers to have actual injured clients) or try to make it easier for courts to identify and dispose of bad suits at an early stage. The main problem is that the "early stage" is not early enough or inexpensive enough for many defendants, and there is always the chance that the judge will let a meritless claim to go that jury of real Americans who will charge you for all of society's ills. That creates an incentive to settle even meritless cases, which means plaintiffs (and their lawyers) get paid, which gives them the incentive to keep rolling the dice.
To that extent the beefs of those who complain about liability are legitimate. On the other hand, a lot of the griping that I see strikes me as merely an attempt to deny and avoid the real risks created by the activity in which people engage. In aviation, the risks are serious, the price of error is high, and those costs have to be allocated. Nobody will tell you that they're trying to duck their fair share of the responsibility, but when it comes to liability coverage, it's hard to parse that out from the burden imposed on the system by the frivolous suits.
August
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