Politics: J'accuse!

[Not Me]

Originally posted by Tyrone Slothrop
Governor Arnold suggests that the State of California receive 3/4 of all awards of punitive damages.

I think 100% of the punitives should go to a state fund to provide health insurance to the uninsured.

The policy reasons for allowing punitive damages are not to compensate the victim. They are to punish the wrongdoer, so it is ridiculous to give this windfall to the plaintiff. The plaintiff gets the compensatory damages and is made whole.

The governator isn't the first to propose this. I remember hearing these proposals in Torts class.

[Atticus Grinch]

Originally posted by Tyrone Slothrop
You want to preserve some incentive for the plaintiff's counsel to seek them, and one dollar out of four should do it.

I guess if you spend too much side on the defense side, it looks like all decisions are made by the lawyers without consulting the client. This is no more true on the plaintiff's side than it is on the defense.

You have to incentivize the client, not the lawyer, or you wind up in a conflicts morass.

[ltl/fb]

Originally posted by Mmmm, Burger (C.J.)
California has often discussed the possibility of converting into more than one state. The problem is no one wants San Francisco.

Indeed, even a book has been written on the subject.

I think Ty's point was that only Texas has a right to go and split into a bunch of states without getting an OK (unless the incredibly long and complex and self-contradictory TX constitution says it's subject to approval by residents, or something.

I am all for consolidation of states in the NE. They are ridiculously small.

thanks for punctuating "victims' compensation" correctly. But nice sneaky way of getting your constituency out of ever having to pay punitive damages, as Atticus's post points out.

[Tyrone Slothrop]

Originally posted by Not Me
The governator isn't the first to propose this. I remember hearing these proposals in Torts class.

Go back to musing about the dormant commerce clause, then.

[Not Me]

Originally posted by Atticus Grinch
I guess if you spend too much side on the defense side, it looks like all decisions are made by the lawyers without consulting the client. This is no more true on the plaintiff's side than it is on the defense.

You have to incentivize the client, not the lawyer, or you wind up in a conflicts morass.

AG, you are outting yourself as a contingency-fee plaintiff's attorney.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch
So the 100% of individual plaintiffs who will then instruct their attorneys not to bother seeking a punitive award, and the subsequent loss of the deterrent effect, would just be a bonus for people and businesses committing malice, oppression, and fraud?

Or are you just unconcerned about creating conflicts of interest between attorneys and clients, if they're on the plaintiff side?

An incentive would remain, if you allow the lawyers to collect fees out of the punis as well. Larger award=larger fee. I said reasonable fee, not hourly fee, and there are plenty of ways to calculate a reasonable fee in light of the relief granted, as already is done in, e.g., class action lawsuits. Savvy plaintiffs' lawyers would agree to take less of the actual award in exchange for the opportunity to seek punis.

And you're assuming there's no conflict of interest now. Television has made a mint on episodes trying to reconcile the settle/fight question. They'll be disappointed to hear that was all fictional.

[Mmmm, Burger (C.J.)]

Originally posted by Atticus Grinch

You have to incentivize the client, not the lawyer, or you wind up in a conflicts morass.

We allow class actions don't we? How do you reconcile that conflict? Coupons for $10 off your next legal engagement?

ETA: And stop using bullshit non-words. It's beneath you.

[Atticus Grinch]

Originally posted by Not Me
AG, you are outting yourself as a contingency-fee plaintiff's attorney.

Actually, I have worked both sides of that coin. What do you do for a living?

[Tyrone Slothrop]

Originally posted by Mmmm, Burger (C.J.)
We allow class actions don't we? How do you reconcile that conflict? Coupons for $10 off your next legal engagement?

I'm still not quite seeing it, but let's just say that 3/4 of the gross punitives go to the state.

[ltl/fb]

Originally posted by Mmmm, Burger (C.J.)
We allow class actions don't we? How do you reconcile that conflict? Coupons for $10 off your next legal engagement?

ETA: And stop using bullshit non-words. It's beneath you.

With class actions, there are enough people to make the eventual entire award big enough to attract lawyers. The lawyer's fee on the punitive damages portion of an individual case, especially if it's limited to being "reasonable" and isn't even a real contingency fee, is not going to be that much money. Plus, once people think of the punitive damages part of awards as money belonging to the state, politicians will start running on the platform of how lawyers are getting rich out of money that ought to be going to the state, and lawyers' fees will get cut, which will provide even less incentive, etc. etc. I can see the incredible beauty of your pro-industry scheme, though. Pretty sneaky, bro.

Also, right now, plaintiffs who get punitive damages don't feel the loss of 25% or 33% or whatever of their actual damages. So, really, it seems like if you are going to take punitive damages away from the plaintiff, you have to have the defendant pay the plaintiff's attorney's fees so that the plaintiff actually gets compensated.

Hm.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
And you're assuming there's no conflict of interest now. Television has made a mint on episodes trying to reconcile the settle/fight question. They'll be disappointed to hear that was all fictional.

It's not fictional, but it's equal to both sides. And it's not enshrined by state law so the client knows from the get-go there are claims the lawyer is asserting on his own behalf, and then there are the claims that really are the client's.

Play out the tape.

• Client: "I'm gonna sue for punitive damages!"
  
  Lawyer: "Sounds good! Of course, you won't see any of it."
  
  Client: "You mean they're not available?"
  
  Lawyer: "No, I get to keep some of it, and the rest goes to the state. It's called a common fund."
  
  Client: "Well, that sucks. Drop it."
  
  Lawyer: "Hold on --- it might improve your leverage for settlement. Yeah, you should make the claim anyway; it will improve your leverage! That's the ticket!"
  
  Client: "Okay, but I get to decide when to drop the claim, so if we're chasing after a wild goose, you're punting. And I don't want any costs of proving malice, oppression or fraud coming out of my portion of the award. That comes out of your portion."
  
  Lawyer: "I don't necessarily agree, but we'll cross that bridge when we get to it."
  
  Client: "Wait, what if we settle? How do we allocate the costs of litigation between us? Will there be a decision made about what portion goes to you, or which are malice-costs that you get back? Can we say that you incurred malice-fees and malice-costs on your own dime, and if we settle before trial, you don't get those back, because you took the risk of bringing the malice claim in the first place, since obviously I get nothing out of it?"
  
  Lawyer: "Um, let's cross that bridge when we get to it."

And so on. Ever do any PI work? The only reason the client, attorney and lienholders are all on the same page is that the lienholder negotiates some of the lien to recognize otherwise there would be no incentive to make a claim for medical specials. Take away 100% of the client's recovery, and the client has no incentive to bring, litigate or win the case.

Let's be clear --- the same politcians and posters who think this is a great idea are the ones who think punitives are bad and wrong. That's not a coincidence.

Besides, do you really want state legislatures to have an economic incentive to re-write the punitive damages standard to improve cashflow on the backs of out-of-state corporations? Jesus, people, think!

[Not Me]

Originally posted by Atticus Grinch
Actually, I have worked both sides of that coin. What do you do for a living?

IP.

[Atticus Grinch]

BE IT ENACTED IN THE STATE OF CALIFORNIA:

(a.) In every civil case involving a claim for monetary damages, the following jury instruction and special verdict form shall be submitted to the jury, regardless of the presence or absence of a punitive damages claim asserted in the Complaint or pled by the plaintiff:

• Has the defendant acted with malice, oppression, or fraud, as defined by the Court's instructions to you, in the commission of the conduct alleged by plaintiff?
  
  If your answer to the above question is "yes," state the amount which will deter such conduct in the future by this defendant and others similarly situated.

(b.) Concurrently with the submission of the written jury instructions and the special verdict form, the Court shall submit a blank check, payable to The State of California, drawn against the defendants' respective banks.

(c.) No claim for punitive damages may be prevented from submission to the trier of fact by means of demurrer, motion to strike, or motion for summary judgment and/or adjudication.

[Hank Chinaski]

Originally posted by Atticus Grinch
IMaybe the solution is to allow other D.C. residents to declare a "residence" in a state of their choosing, the way we allow military personnel to do so. They can be like the lost tribe of Israel or something. They can declare residence in battleground states, and be lobbied by each party to do so.

Complication. 26% are under house arrest.

[Not Me]

Originally posted by ltl/fb
So, really, it seems like if you are going to take punitive damages away from the plaintiff, you have to have the defendant pay the plaintiff's attorney's fees so that the plaintiff actually gets compensated.

You do realize that the overwhelming majority of tort cases do not get awarded punitives. The attorneys fees come out of the "pain and suffering" part of the compensatory damages.