Losing Faith in Juries?

In the ongoing 'Tort-reform' discussion, it has been suggested that the biggest 'enemy' is the trial lawyer. They, according to people like the president, bring fraudulent cases and/or get hugely inflated awards, and then take the bulk of that money from the victim.

Spend any time listening to Bush or the tort-control crowd, and you'd most likely be ready to run out and string up any lawyer you can find. However, the lawyers have been set up as patsies. If you really feel the tort system is out of control, the real enemy is the Jury.

Specifics change from jurisdiction to jurisdiction, but it almost always falls on the juries to decide 1. Was there negligence? 2. Was there an injury? 2. What is a proper compensation / punitive damages award. If awards are becoming unreasonable, then the fault lies on the jury. Of course, you'd never hear anyone say this directly - as they would be attacking one of the bedrocks of our entire judicial system, so it's more palatable to blame the lawyers.

Even in the world of Law and Order on almost 24 hours a day, it seems that people forget how our system works, so I thought a little refresher might be in order, to better understand how things work.

First of all, to even get before a jury, a plaintiff must 'prove' the basic case for negligence exists: That the defendant had a duty towards the plaintiff, which they breached, and that breach caused damages which the plaintiff can recover for. In this part, it is the judge that decides if a case has enough merit to be heard. Simply deciding to sue a company isn't enough - you need to convince a judge that the case has merits.

Assuming that hurdle is passed, there is still a long way to go before winning a case. We have an adversarial system, with 4 essential players. Judge, jury, and lawyers on either side. The way the system is designed to work is that the two lawyers advocate strongly for their clients. The judge keeps orders and clarifies questions of law. Juries are the finders of fact: They determine the truth which is hidden between the two points of view presented by the opposing lawyers.

So, if (as Bush implies) the tort system us out of whack, part of the problem must be that the plaintiff's lawyers are much better at law than the defendant's lawyers. Yes, the lawyer for the plaintiff is going to claim complete negligence worth millions of dollars because the plaintiff choked on a pretzel. The defense, however, is going to try and point out how stupid a person needs to be in order to have choked, and that a reasonable person wouldn't have chocked, and that even if the company was somehow liable, really chocking is only worth $3.50.

The jury, listening to both sides and the legal clarifications by the judges, determines whether or not the company is liable and how much to give for damages.

Even then, many jurisdictions allows a judge to reduce the award if they feel it was not consistent with the facts presented.

With medical malpractice (the current sob story), the burden is even higher. In addition to above, the plaintiff needs to present a specialist who will testify that the doctor's actions somehow deviated from accepted practice (and of course, the defense will have an expert which claims just the opposite).

The juries are the keeper of the pocketbook, if you will. They determine who should recover, and how much. If you feel that the tort process is flawed, you are really saying that it is the jury system which is flawed.

And I dare you to make that your argument.