Hot Coffee
I watched the HBO documentary "Hot Coffee" last night and wanted to flag it for anyone interested. Pretty good, I have to say. If I had to sum it up in one sentence, I'd say it's a good look at how voters' ignorance is exposed to pass laws that severely restrict consumers' access to the civil courts. Just ask your relatives if they know what tort means.
My one small gripe is that it really ignores the flip side. It paints jury trials as an ideal. But there's no mention of the cost of conducting a jury trial and the enormous pressure to settle even when facing frivolous claims. Anyway, watch it, it's good. And if you're studying for the bar, there's plenty of issue spotting for you.
As an aside, am I the only one in love with HBO:Go?
EDIT: And during my morning reading I see that ATL has a rather lengthy post about the documentary as well. So an ex post H/T to them, I guess.
My one small gripe is that it really ignores the flip side. It paints jury trials as an ideal. But there's no mention of the cost of conducting a jury trial and the enormous pressure to settle even when facing frivolous claims. Anyway, watch it, it's good. And if you're studying for the bar, there's plenty of issue spotting for you.
As an aside, am I the only one in love with HBO:Go?
EDIT: And during my morning reading I see that ATL has a rather lengthy post about the documentary as well. So an ex post H/T to them, I guess.
Labels: Rabid Conservatives, Television
posted by Armen Adzhemyan at 9:56 AM
21 Comments:
I don't know that we can even point voter attitudes on this issue without pointing at ourselves. I think most Boalties, including myself, are just as ignorant about how tort law truly works in action.
Even the worst of students from our school would rather be unemployed than work in this underbelly of our profession. How many times have you heard our CDO advising on joining personal injury firms? How many people from our school do you know who want to be personal injury attorneys?
Even within our own community, the attitude is non-class action tort lawyers are truly the shit of our profession and I'm not sure why it is. But lets not act like we don't also look at this area of law as a giant piece of crap for our Golden Gate and USF brethren to deal with.
One of the most talented members of my graduating class ('07) is a non-class personal injury lawyer. He gets some ribbing from some of his BigLaw friends, but the truth is I (and I believe others) admire his ability, respect his job choice, and frequently envy the trial and deposition experience he has gotten at a very early stage in his career.
11:13 here, shows how rare it is that you had to pick one particular example from class of 07. It's weird how people who defend such morally corrupted corporations who ensure wealth inequality look down on someone who works with people who are injured in some of the most dire and gruesome circumstances, with no familiarity to the law.
Why even people from this school find the former, who defends these businesses from the little guy, more distinguished than the guy who fights for the injured, is bizarre.
My point is I don't get why even within our profession take this weird ideological viewpoint (which often infects me), is really bizarre, and I guess a super-successful republican strategy.
Or maybe that was the most readily available example for someone who graduated in that class. Strange possibility.
Or maybe what you're describing is much more closely aligned to your own misapprehension of the profession than reality. I can tell you in practice, the legal profession is a VERY small world. Sure there are a-holes, but for the most part, what I see is people treating others with respect, regardless of their chosen area of law. There's really just no reason to be elitist about what you do. Even if you're the biggest corner office rainmaker, you're going to have family, friends, and clients calling you about a "reasonably priced" PI attorney, or divorce lawyer, or estates & trusts specialist, etc. Trust me, the appropriate response in those situations isn't, "Oh I went to Boalt, I wouldn't know the first thing about personal injury."
It sounds to me you're conflating employment choices made by law students with some bizarre hierarchy that just doesn't exist. Just because more law students desire a path of guaranteed salary and almost 0 pressure to generate business, as opposed to a world of contingency fees and eat what you kill, does not mean that one is somehow looked down upon as inferior.
I was a legal assistant for a small plaintiff's side firm that did wrongful death and personal injury. The partner I worked for called it "family law" and maybe rightfully so. Most clients were breadwinners for their family and the attorneys ensured that they could provide for their families and learn a new trade if possible.
Are their frivolous claims? Of course. Are there frivolous claims in any kind of civil suit? Yes. If a claim is really frivolous, can't a pre-trial motion take care of that? It's possible capping jury awards reduces frivolous claims. But it also undoubtedly makes it harder for worthy clients to get attorney help and the actual amount of damages they need/deserve.
As for the poor reputation of these attorneys, I think a few highly publicized bad apples has ruined the bunch. But you know what they say, you always make fun of personal injury attorneys until the chainsaw guy at the haunted house cuts off your arm by accident... or something like that...
My own limited experience has been that the number of frivolous plaintiff claims does not exceed the number of frivolous defense motions.
What Patrick said. Indeed in 15 years practice at medium- and small-sized firms (following graduation in '89) I can confidently assert that the number of frivolous claims *and* defenses in large-scale corporate cases is sufficiently large that there should be no complaints the other way. If one could operationalize 'frivolous', so that it didn't just related to Rule 11, it would be interesting to have an empirical study of where those predominated. My bet would be that the lowest proportion would be in criminal law and that there would be geographic distinctions that would outweigh distinctions by 'field' of law.
Most of the frivolous stuff from defense side involves refusing to produce. The Plaintiffs' stuff tends to sound more egregious.
That being said, "hot coffee" was unimpressive. There is a very legitimate reason to believe the jury verdict in that case was outrageous.
Moreover, the movie misses one very crucial part of real life PI litigating: these companies don't really pay claims. In fact, they all pay monstrous liability premiums for insurance. As a result, they don't really "learn" from bad mistakes and judgments inasmuch as they leave everything up to the insurer and chosen counsel and sink in 50 grand a month. That is money that really could go to expanding stores or new jobs, and even as a liberal, I see how this system can devastate job growth.
Lol, you're not a liberal if you think the system of torts "devastates job growth."
I worked in BigLaw for almost two years and did a good deal of personal injury (defense) work... smoking and health type stuff. Now I do non-personal injury stuff, but still intentional torts. You may want to revise your view of which lawyers deal with tort law. It is far beyond ambulance chasers.
That's great reasoning. Big companies don't learn their lesson so we should limit their liability.
9:08,
It does sort of make sense. There are two primary benefits of a tort system--compensating victims and deterring future misconduct.
If we find that our system is not effective at deterring misconduct then we should (1) either fix it or (2) limit damages to what is needed to compensate victims.
If large punitive damages are ultimately unsuccessful at deterring bad behavior, then what socially useful purpose do they serve?
Of course, I'm skeptical that tort damages are ineffective at deterring misconduct.
There's an assumption there that's not warranted. 11:57 pointed to liability coverage, but if he's ever heard of an insurer paying for punitive damages, then I'd love to hear about it. So punitive damages--which are the deterrent portion--are paid out of pocket.
Arguably, it's been the Supreme Court's State Farm line of cases that have limited the deterrent value of punitive damages. Just reading the facts of State Farm should help you see how.
10:28,
But do we really want to promote flouting attempts at deterrence? That to me seems absurd. It just encourages people and entities to ignore punishments.
Wouldn't it be more appropriate to legislate away the use of insurance to pay punitive damage awards? I have no idea if that would be permissible though.
Not only is it permissible, it's the law! Cal. Ins. Code 553.
10:28 here.
Armen,
Were you responding to me or to 11:57? I don't think that I assumed that punitive damages were covered by insurance--I'm well aware that they are not.
My only purpose was to respond to 9:08am, who said:
"That's great reasoning. Big companies don't learn their lesson so we should limit their liability."
Yes, if big companies don't learn their lesson from tort damages, then we should limit their liability to compensatory damages and find a different way to deter.
But like I said in my previous post, I'm skeptical that tort damages (compensatory or punitive) are ineffective at deterring bad behavior.
Thanks for the clarification. I just wanted to point out (to anyone) that if there's any lack of deterrence, it's not from liability coverage.
I guess that's where we disagree. I would assume that if tort damages aren't effective at deterring misconduct, the problem is that they aren't large enough.
11:32,
Who are you disagreeing with? As far as I can tell, none of the last few posters took the position that increasing tort damages would not increase deterrence.
Finally saw part of this. I thought it was strange that the makers of a film about how jury trials are important (because they put the power into the hands of the people) also spent so much time staging interviews that made ordinary people look like idiots.
There are a lot of distorted facts in this documentary. Particularly about medical malpractice. Medical malpractice insurance companies are regulated by state insurance departments and all savings from caps are passed on to doctors not taken as profit. Profit is not allowed for med mal carriers in states like NY. Rate increases are also subject to insurance department approval.
Furthermore, the part of healthcare costs increasing in Texas after med mal caps were implemented is misleading. Because the director (former trial lawyer) never mentioned that med mal costs did indeed go down for texas (see wikipedia). Med mal is a small percent of health care costs. This is an example of word play and using numbers in an unclear way to distort the truth and support the directors agenda.
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