ATRA Tort Reform

  1. 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
  2. Rule of joint and several liability - Advantages / disadvantages
    • disadvantages:
      • defendent: 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:
      • defendant: share burden with others
      • plaintiff: fully compensated
      • society: efficiency. less cases will go to courts; promotes settlements (disadvantage for lawyers)
  3. 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
  4. 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
  5. 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
  6. 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
  7. 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.
  8. 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
  9. 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.
  10. 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.
  11. 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.
Card Set
ATRA Tort Reform
ATRA Tort Reform