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  1. Rule of joint and several liability
    • plaintiff can recover from multiple defendants collectively, or each defendant individually
    • neither fair nor rational; fails to equitably distribute liability
    • ATRA: replace by proportional liability; moderate version would include 
    •    bar application of joint and several for non-economic damages
    •    bar application for codefendant responsible under a certain threshold (e.g. 25%)
  2. Collateral source rule
    states that evidence may not be admitted at trial to show that plaintiff’s losses have been compensated from other sources, such as insurance or WC
  3. Punitive damages
    • awarded not to compensate, but punish defendant; frequency and size have grown
    • ATRA (4 reforms):
    •    establish a liability trigger, reflecting intentional tort and quasi-criminal nature
    •    require clear and convincing evidence to establish punitive damages liability
    •    require proportionality in punitive damages so punishment fits offence
    •    enact federal legislation to address problem of multiple punitive damages awards
  4. Noneconomic damages
    • pain and suffering, emotional distress, loss of consortium or companionship; erratic
    • ATRA: broad and unguided discretion given juries is the single greatest contributor
  5. Prejudgment interest
    • although well intended, can result in over-compensation, hold a defendant responsible for delay it may not have caused, impede settlement
    • ATRA: should be structured fairly and in a way designed to foster settlement
  6. Product liability
    • meant to compensate persons injured by defective products
    • does not send clear signals about how to avoid liability, and holds them liable for failure to adopt a certain design or warning even if they neither knew or could have anticipated risk
  7. Class action
    often considered a means of defendant extortion: thousands or millions of plaintiffs are granted class status, and receive pennies while their counsel receives millions in legal fees
  8. Appeal bond
    • currently is up to 150% of verdict, forcing companies into bankruptcy if choose to appeal
    • ATRA: limit size of appeal bond when company isn’t liquidating or trying to flee justice
  9. Jury service
    • juries are becoming less and less representative of the community. 20% of summoned don’t respond because of occupational exemptions, flimsy hardship excuses, etc
    • disproportionately excludes the perspective of many people who understand the complexity of issues at play
    • ATRA: improve jury system so that defendants and plaintiffs receive fair trial:
    •    eliminate occupation exemptions
    •    ensure only those who experience true hardship are excused from jury service
    •    provide jurors flexibility in scheduling their service
    •    protect employees against any adverse action in the workplace
    •    establish lengthy trial fund, financed by nominal court filing fee
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