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Posted on 2/19/24 at 9:21 pm to udtiger
quote:
Talk to business owners about how litigation climate influences relocation and investment.
Nah, it has more to do with the fact that Louisiana has a severe shortage of college graduates with STEM degrees. Transplants don’t view Louisiana as an attractive state to relocate to, so the only way LA could attract F500 companies is by figuring out a way to retain enough in-state college educated STEM grads. Having a big enough population of STEM grads provides a job market that attracts companies.
This post was edited on 2/19/24 at 9:22 pm
Posted on 2/19/24 at 9:37 pm to Wednesday
quote:More than 37 work weeks of five 40 hours days just for one case? Even if over a few years, 1500 hours?
you’re probably looking at roughly 1500 billable hours for a jury trial
This post was edited on 2/19/24 at 10:49 pm
Posted on 2/19/24 at 11:45 pm to Wednesday
quote:Right.
To get a case to trial, you’re probably looking at roughly 1500 billable hours for a jury trial
I'll talk in terms of medmal, because it's the arena driving my interest.
----
So, in terms of those 1500 billable hours, an attorney is often not going to be adequately apprised of appropriate facts (including those exonerating the defendant) until discovery, deposition and occasionally not even until trial. By then, both he (or she) and the client are heavily invested (tons of time spent).
Despite "investment", when the attorney realizes his case lacks merit, why doesn't he drop it to save time and further personal expense, and to spare his client further trauma? He doesn't because despite forwarding a meritless case (40% of medmal cases are brought without merit), he still has a decent chance to win. In the US, 30% of meritless cases still end in findings for the plaintiff.
Since the current US system is adversarial, discovery and case prep are an expensive and prolonged process. 1500 billable hours worth, as you say. That does not include other sundry expenses like that $2500/hr MD expert witness. The result is extremely high overhead cost, and that is just the plaintiff side. The defendant bears all his own share of such costs -- win, lose, or draw.
It is an extremely inefficient system. It is also unbelievably stressful for both plaintiff and defendant. E.g., In chronic pain management, we often see patients' post-injury pain improve dramatically following conclusion of a suit, regardless of outcome. It is not malingering. It is a real perception. There is a psychological component involved - catastrophising, kinesiophobia, etc. The longer the process, the longer the client's pain and suffering. On the other side, a significant portion of MDs caught in a medmal suit contemplate suicide. It's a bad system for either side.
Worse yet, even if a plaintiff wins, on average only 46% of settlement money actually gets to him.
There has to be a better way ... and there is
A European style system is nonadversarial. It is similar to workmans comp. It only runs a 5-10% overhead. That effectively doubles efficiency (money available plaintiffs). It concomitantly limits incentives for defensive medicine. In the US that would knock 10-20% off the cost of healthcare.
----
The European Tort Model
How reform of the US System could look:
--- Offer two parallel options for plaintiffs.
The plaintiff can choose one or the other.
Option One:
An adversarial approach virtually identical to our current Tort System, but with the requirement that the loser pays the winner's costs. I'd propose the elimination of caps for pain and suffering under this option. (European System differs slightly here. Goes with sanctions rather than remuneration)
Option Two:
A Worker's Comp type system. Injured patients would bring claims before a review board responsible for determining if compensation is in order and, if so, how much. The Board would then authorize payment out of a "compensation pool" which would be immediately awarded to the plaintiff. For a patient to get paid, the board would not have to find the doctor at fault, or that medical negligence caused whatever pain and suffering the patient is experiencing. Money for patient relief would come from a national compensation fund paid for by malpractice premiums placed on doctors, hospitals, pharmaceutical companies, etc.
The goal of such a system is not to find fault or establish causation. It is to provide compensation to injured patients regardless of cause.
This dual option mechanism is employed in various forms throughout Europe.
The vast majority of plaintiffs go with Option #2.
Posted on 2/20/24 at 12:26 am to udtiger
quote:
Cap on total general damages of $500k per claimant/plaintiff
This one all day. I'm currently involved in a case and dealing with this fricking cap bullshite. Been going on 11 years!
It's never been reformed since the fricking 70's.
Posted on 2/20/24 at 4:11 am to Jake88
If we are talking car wrecks, it is probably less than 1,500 on big cases and far less on smaller cases. 1,500 is possible, but it would take a perfect storm of issues.
But when you think about the amount of discovery and depositions that are done in these cases, along with the various potential experts, the costs can be extensive. Additionally, it takes years to get something to trial. These costs are spread out over 3-5 years, depending on the case.
But when you think about the amount of discovery and depositions that are done in these cases, along with the various potential experts, the costs can be extensive. Additionally, it takes years to get something to trial. These costs are spread out over 3-5 years, depending on the case.
Posted on 2/20/24 at 7:15 am to The Johnny Lawrence
quote:WAY less.
If we are talking car wrecks, it is probably less than 1,500 on big cases and far less on smaller cases. 1,500 is possible, but it would take a perfect storm of issues.
Posted on 2/20/24 at 7:35 am to NC_Tigah
quote:
30% of meritless cases still end in findings for the plaintiff
And in those 30 percent of cases, you put the plaintiff lawyer’s fee AND litigation costs (expert fees, court costs, etc) on top, plus the defendant has now spent his own fees and costs that he’ll never see again.
In the 1500 hrs (and we’re talking about every issue being contested over a period of yrs), most of that is discovery so the parties can determine what the hell to do. Trial is expensive bc it’s a lot of billable hours in a short period of time, PLUS there are expert costs that are also obscene.
The plaintiffs don’t drop after discovery bc a case has “merit” if the plaintiff lawyer can show a dispute for trial, and then a judge or jury figures it out. As long as the issues remain in dispute, a plaintiff has less incentive to settle unless the settlement is enough to make both sides miserable.
Agreed that it is ludicrously expensive. And it is an AWFUL, emotional and grueling process. I don’t do med mal defense, but I do defend other professionals, and it is a soul sucking identity crisis that leads to very dark days. I could never take a plaintiff’s case against another professional- whether doctor, lawyer or Indian chief. I would be too personally affected.
Comp system
I like the idea that the litigant could choose between a comp system and an adversarial system. However, I fear two things. First, in a comp system you’ve described, for general liability cases (car accidents, slip and falls, etc) would require that non meritorious claims are paid. Thus, insurance or businesses would be paying every loser who has unrelenting back pain from a soft tissue injury that nobody can prove he doesn’t have for some kind of accident that was plaintiff’s fault.
(NOTE: In Louisiana we have a medical review board that screens cases, and a general fund that damages, and statutory general damages caps, and doctors still complain about it.)
My other concern is that a comp type system doesn’t always attract good lawyers bc the pay isn’t there, which can harm litigants on both sides of the equation. That pains me as a lawyer, bc believe it or not, most lawyers just want to see our clients get a fair shake.
Adversarial
Our system already provides for the winner paying the loser’s “costs”, it just doesn’t provide for the loser paying the winner’s attorney. Which I agree SUCKS for civil defendants, and is a gamble for plaintiff’s lawyers. But when you say loser pays “costs” I hear “court costs and expert fees” which are different than attys fees and can be astronomical.
A sanction based system on the LAWYERS requiring atty fees for trial prep only, could work, but we should definitely proceed with caution. See: eg Trump case in NYC. Judges have ALOT of discretion with sanctions.
Practicing law is a tough business. It’s hard to hold your client’s hand thru the worst thing he’s ever been thru. I’ve had grown men cry in my office. It’s terrifying for the civil defendant. That doesn’t change the fact that none of us are perfect, and we make mistakes. So sometimes - we owe. And it’s probably just as godawful if you’re representing someone who has lost a child, or a spouse, or a limb.
Ultimately (at least In Louisiana) I think the true problem is that there is an unholy union between doctors and lawyers, that drives up the judgment value in these car accident cases. The financial arrangements between these pain management docs and the lawyers who fund their lifestyles are just revolting to me.
I do like the suggestion in the OP that future medicals are placed in trust, and frankly I’d probably extend that to future wage loss. That would do a whole lot more to disincentivize what is the real problem in personal injury cases than a loser pays situation.
Posted on 2/20/24 at 7:36 am to AlxTgr
I wasn’t talking necessarily car wrecks - but there are other types of catastrophic industrial injuries that you can easily get there- and we’re talking a period of yrs, not months
Posted on 2/20/24 at 12:23 pm to Wednesday
Plant explosion or asbestos, I can see how you get to 1,500.
Posted on 2/20/24 at 12:39 pm to Wednesday
quote:FWIW, in that model, as with workers' comp, injury is verified. Granted, as with workers' comp, within the entire system, there is undoubtedly a malingering component in said verification.
in a comp system you’ve described, for general liability cases (car accidents, slip and falls, etc) would require that non meritorious claims are paid. Thus, insurance or businesses would be paying every loser
Again, my comments really address medmal though. I'd certainly defer to you or SFP or others regarding non-med PI claims. I'm not certain the nonadversarial approach employed elsewhere is applied to non-medical injury.
But I do know in medicine the costs of defense are significant and absorbed in toto by medical defendants or potential defendants. As you'd expect, defense costs are contributory to higher US medical costs. But those contributions pale in comparison to additional costs of US defensive medicine, as well as diminished medical availability in nonurban settings.
It also bothers me that what passes for US medical tort reform is far more often comprised of award caps rather than fixes such as obligatory medical review or reversionary trust arrangements.
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