If
you're not a large corporation with unlimited funds for lawyers (or
if you haven't bribed the judge) it may be difficult for to get
prompt and proper adjudication of a lawsuit. The problem is one that
most affects a plaintiff who is an average citizen suing a large
firm. Two of their (the defendant's) techniques (among others) are
delays in trial, and extension of the proceedings in order to make
the litigation too expensive for the plaintiff to afford.
On
the other hand, we hear, on occasion, of a jury that finds for a
plaintiff and awards not only compensatory damages, which may not be
large, but punitive damages in an amount that staggers us. The
payment of many millions – or tens or hundreds of millions – may
be decreed. Of course the defendant will appeal and invoke any
legalities that may help it (I'm assuming it's a corporation) from
paying the damages – at least not as much as has been determined.
So the plaintiff, who may have won the case, remains without
compensation for the harm done him, and faces more time in court.
Settlements,
of course, will sometimes, shorten the process. The problems with
them are that the amounts paid are less and, after the lawyer is
paid, may not represent adequate compensation for the damages and for
the plaintiff's time and aggravation. Often moreover, the parties
are not allowed to disclose the details of the settlement, in the
hope that others won't be encouraged to sue in the hope of a
windfall.
Another
consideration is that the punitive damages may actually be excessive
in relation to the harm to the individual, although it may not be
small when damages to all of those affected are considered. It winds
up as a windfall for the plaintiff and his lawyer – one that may
not be warranted. It helps them, but not the public at large. It's
not fair.
Can
a better system be devised? Perhaps. I'm not especially concerned
about corporations that have harmed our citizens and, although aware
of the faults, would continue to do so because it helps their bottom
line and they don't anticipate ever having to pay the piper – or at
least not having to pay very much. (I must admit my view that some
companies that are following the rules and are unaware of damage they
do should be evaluate differently. I leave that concern for another
time.) My unease is with those who feel they have been wronged. I
realize that individual suits may be a form of extortion but I'm
convinced that the greater fault is on the part of those who wronged
them, if
that is the case.
I
also feel that a large payment for silence, or excessive punitive
damages awarded to an individual because a jury is feeling its oats,
or for whatever other reason, does not serve the public good, however
much we may enjoy the fact that a corporation with deep pockets is
being humbled. I am also troubled by the long delays which deprive
the plaintiff of justice.
My
lack of legal credentials, however, does not forestall me from making
some proposals for dealing with this situation. I'm nothing if not
all-knowing – even in areas in which I lack knowledge. And I also
recognize the fact that at certain levels the rules are decided
locally, reflecting local views rather than those of the federal
government. If they are deemed reasonable and worthy, one or more
of my proposals could be incorporated into state law. There are
three areas that I want to address.
The
first relates to punitive damages. They should go to the government
– to all of us (for tax relief, improved government projects, aid
for the needy). They are fines that should not go to the individual
suing. Too much of it goes to his lawyer in any case. Decisions
about punitive damages should be argued following a decision about
responsibility and not be part of the initial findings of the jury,
although compensatory damages may, as discussed below. Government
lawyers should take over if an initial decision of guilt is made.
They'll have more time and backing than the plaintiff's lawyer, and
are better prepared to withstand the actions of an opposing
corporation's staff.
The
second area of note for me is that of compensatory damages. From my
perspective they should be generous if the jury believes the
defendant to be at fault. In addition to repayment for the actual
offense, the following areas should be compensated (assuming they are
not factors in that offense): time lost related to the offense itself
and the legal actions that followed; legal expenses (and perhaps
these should be specified so that they don't come from the overall
settlement); embarrassment and damage to the plaintiff's reputation;
anticipated future losses and costs likely to result from the wrong;
and any other area that the jury considers appropriate. The threat
of such damages and of government lawyers in the second phase of the
action may convince the wrongdoer that, since there would be no
consideration of punitive damages, a quick settlement, even if
generous, would be less costly than protracted legal actions. (Of
course if the jury decides that the suit was frivolous, costs should
be paid by the plaintiff.) Class action suits would not be affected
by these rules.
Finally
there is the consideration of time. “Justice delayed is justice
denied.” Trials should be swift. There should be short
time limits set for consideration of the facts prior to trial, for
appeal of verdicts, preparations for appeals since the one appealing
will already know why he is dissatisfied, and any subsequent actions.
At some point the awarded damages should be paid, irrespective of
the stage of litigation. Whoever considers the decision unjust would
have to initiate a new suit at that time, and the rules would be the
same.
The
purpose of such procedures would be to speed the judicial process and
ensure the rapid payment of whatever is due – whether to the
plaintiff or defendant. And it is aimed at the payment to the
government of sums that will be available for costs that later result
from the actions that prompted the suit.
If
“deep pockets” are going to cover the costs of damages they've
done – both to the individual and to society, and to pay them in a
reasonable time, it may be appropriate to change the rules of “the
game.”
May 25, 2017
