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Originally posted by Mmmm, Burger (C.J.)
You speak of punitives like they're s the god-given right of a lawyer and client to get their part of the big cash award.
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Actually, I don't. I agree it's a windfall to the plaintiff. That windfall is the price of the incentive to pursue the case, the same way we give plaintiffs an incentive to bring qui tam False Claims Act cases
where they have suffered no damages at all. Their "right" is not God-given; it's legislature-given to effectuate a policy to punish wrongdoers without employing an additional 1,000 deputy AGs.
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The lawyer has a claim only to the extent that his cut creates a reasonable incentive to bring such cases--i.e., fair compensation for time, effort, and risk for handling the case (which is standard justification for a contingency fee).
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I simply do not understand why people are not grasping that incentivizing (yeah, I said it, who's gonna stop me?
You, Lieutenant Wienberg?) the lawyers, while removing the incentive to the client, creates more problems than it solves. Yeah, it sucks that nine people a year get rich off a punitive damages award that actually survives appeal. It also sucks that occasionally plaintiff-side lawyers get rich off of big fee awards (this is what your voter base is pissed off about, BTW). But that's just the risk-reward formula helping out someone other than a venture capitalist. You put your neck out on something, and you might get rich. This doesn't piss us off when it happens in the lottery, but that's because there are too many multiple suckers to keep track of.
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What you're saying, then, is that despite all the flaws in how punitive damages are actually distributed, we can't change the system because to do so would create massive conflicts of interest. Come on--I've already proposed a way to resolve that conflict to a large degree, as has the governator. I'm pretty sure that PI lawyers, who long ago succesfully argued that contingency fees should not be an ethical violation, will be able to convince the ethics authorities that structuring retention agreements in order to preserve a client's incentive to seek punitive damages despite not actually keeping any of the award also are consistent with those ethical canons.
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You're not addressing my post regarding the hard conversation at the beginning of the retention. Whose claim is it? You're taking away the punitive damage claim from the client and giving it to the lawyer, and this strikes you as a smart thing to do? The Governor wouldn't be proposing this unless he thought it would resolve in a net decrease in P claims. Neither would you.
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As for government dipping its hand in the punitive damages till, even the Mississippi and Alabama legislatures recognize the damage their courts' wanton award of punis has done to the business environment there.
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Yeah, it will be real easy to convince voters and the legislature that a special tax on people who are proven in court to be malicious, oppressive, or fraudulent is a bad idea. They'll probably go for a flat tax instead.
