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Rule of joint and several liability - Defn, reforms
- Defn: permits plaintiff to recover damages from multiple defendants collectively, or from each individually
- Reform:
- replace with proportionality in awards based on fault
- bar application of joint and several for non-eco damages
- bar application for codefendant < 25% AF
- fund to pay when defendants bankrupt
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Rule of joint and several liability - Advantages / disadvantages
- disadvantages:: not fair, minimally AF could be held responsible for entire damages. also deep pockets are targetted
- insurance: increase in cost of insuring defendants when possible being held responsible for more than fair share
- society: increase overall cost. lawyers may search for deep pockets (name rich defendants with little fault)
- advantages:: share burden with others
- plaintiff: fully compensated
- society: efficiency. less cases will go to courts; promotes settlements (disadvantage for lawyers)
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Collateral source rule - Defn, issues, reform
- Defn: no need for plaintiff to dislose compensation from other sources (e.g. insurance and WC)
- Issues: do not know what plaintiff is getting -> overcompensation / double recovery -> increase overall insurance premium
- Reform: remove or modify to avoid overcompensation
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Punitive damages - Defn, purpose, issues, reforms
- Defn: awarded not to compensate a plaintiff, but to punish a defendant for intentional misconduct and to deter similar future misconduct.
- Purpose: Retribution / Deterrence / Denunciation
- Issue:
- unpredictable whether will be awarded in a case
- awards exorbitantly high
- multiple awards (overkill)
- Reforms:
- Require a liability trigger based on actual malice
- Require clear and convincing evidence of malicious conduct
- awards proportional to level of misconduct
- address problem of multiple awards
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Noneconomic damages - Defn, issues
- Defn: damages for pain and suffering, emotional distress, loss of consortium or companionship etc., which have no precise value.
- Issues:
- Difficult for juries to assign a dollar value
- Tend to be erratic and excessive due to emotional environment and lack of guidance
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Prejudgment interest - Goals, issues, reforms
- Goals:
- compensate the plaintiff fully
- encourage early settlements
- reduce court congestion
- Issues:
- increase size of awards
- inadvertently hold defendant responsible
- Reforms:
- remove on non-eco damages -> reduce size of awards
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Product liability - Goals, issues
- Goals:
- compensate persons injured by defective products
- deter manufacture of such products.
- Issues:
- manufacturers do not know how to avoid liability
- manufacturers liable even when could not have anticipated the risk.
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Class action issues, reform
- Class action: aggregate many cases with similar facts / complaints into a single action
- Issues:
- meritless cases with large # of plaintiffs -> increase defense costs
- awards go to attoneys
- Reform: eliminate
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Attorney contigency fee - Issues, reform
- Contracts with large lawyer contingent fees (large % of settlement) if they win -> public corruption
- Reform: Attorney sunshine reform to limit contingent fee basis.
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Appeal bond reform - Issues, reform
- to delay payment of a judgment until appeal is over
- Issues: in some states defendants required to post an appeal bond at 150% of verdict -> can force bankruptcy
- Reform: appeal bond waiver legislation limits the size of an appeal bond when a company is not liquidating its assets or attempting to flee from justice.
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Jury service reform - Issues, reform
- Issues:
- Juries are becoming less representative of community (do not respond; no-show)
- Reform:
- Eliminate occupational exemptions
- Flexibility in scheduling their service
- Protect employees from adverse action in workplace due to jury duty
- Establish fund to pay jurors who serve on long civil trials.
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