Tort Reform

[cannon_fodder]

I agree that summary judgment should be exercised more frequently (got one today, actually!).  I think the tools are in place to deal with frivolous crap, judges are just afraid to do so.  The new legislation would not correct that.

I would also be on board with doing something to tax punitives to some extent. I think some reward for the attorney to seek them is meritorious (often a separate hearing is required to get punitive damages and requires additional proof) and I like seeing the victim get compensated by the punishment.  I think seeing the victim "get rich" is a bit of a spite thing as they are "rich" from the person who did them wrong.

But if punitive damages over 1x actual damages were taxed at 50% to the State (or whatever) and only the 50% that remains are considered in the attorney fee, I could not complain.  The goal of the damages would still be accomplished and the attorney as well as the victim would still benefit.

[Gold]

It would be interesting to hear a blind survey why judges don't grant summary judgment in state court more than they do.  Something doesn't make sense on that front.

I think a lot of bad information gets out whenever this debate comes up (seems like it is an annual event).  I'm pretty impressed by the jury system.  There are some crazy examples, but I'm also amazed by the percentage of the time they get it absolutely right. 

I really think there is more abuse in how attorney fees are handled at times and how certain motions get to be filed and re-filed at the expense of parties who don't seem to know better, or maybe do know better, but just like to spend money for show.  Your insurance companies pay for a lot of crappy briefs. 

In either event, these are hard things to fix.  You don't want to limit creativity in argument or one's ability to make an argument; you also want to make sure attorneys get awarded for good work.  But in reality, I see a lot more abuse here compared to jury verdicts.

[guido911]

CF, I wasn't really taking a position on the majority of the issues you discussed in your epistle (other than the summary judgment standard). I was simply reporting what was happening. Still, you know that I'm on the defense side of things which means that I am support many of the reforms in the statute.

1.  Non-economic damages:

First of all, caps on damages is not a foreign concept in this state or in federal courts. Indeed, retaliatory termination claims under the Workers Comp statute caps punis at 100,000 (85 O.S. §§ 5-7) and in Real Estate Disclosure Act cases punitive damages are prohibited. 60 O.S. § 837. On the fed side, in employment discrimination cases both compensatory and punitive damages are capped based upon the number employees there are. 42 U.S.C. § 1981a. The world has not collapsed as a result of those caps.
Moreover, I am unsure what sort of cases you work on, but where I am at we deal with multi-million dollar non-economic damage cases all the time. I have personally tried and won cases where these damages were in the tens of millions. Also, were you around during the "let's sue the crap outta nursing homes" wave about four years ago? As a result of all that mess many nursing homes are now either uninsured or underinsured. Heck, go ask State Farm about their experiences with non-economic and punitive damages.
As for insurance bad faith claims, I have tried several of these and they ain't pretty. It seems as if everyone has seen "The Rainmaker" and how that evil insurance company ripped off that family. Juries hate insurance companies. Heck, go ask State Farm about their experience with smart Oklahoma juries.
Finally, capping damages will have more of an effect on both the number of cases filed and how they are evaluated for potential settlement. If as defendant knows that the most he can lose is 400K, I see the potential for more jury trials because the fear of a runaway jury will be removed.

2.  Professional Negligence and the Expert Requirement

You know I have a personal interest in this so I will not waste your time. As you may recall, Oklahoma had an expert requirement rule and such was found unconstitutional as "special legislation" by the Oklahoma Supreme Court in Zeier v. Zimmer, Inc. and Theron S. Nichols, M.D., 2006 OK 98, 152 P.3d 861. I think this is just another to require plaintiffs to have a professional evaluate a cause of action before filing because the standard of care is way beyond the common understanding of lay persons. And the "cost" argument is dubious because the plaintiff in a professional negligence (med mal, accountancy, legal mal) are going to have to hire an expert anyway or will lose on summary judgment. See, Benson v Tkach, 2001 OK CIV APP 100, 30 P.3d 402 )("A plaintiff has the burden of proving through expert testimony: (1) the standard of medical care required of physicians, (2) that a duty existed and was breached, and (3) that this breach of duty resulted in harm to the plaintiff.")


3.  Summary Judgment

Oklahoma substantive law governing summary judgment is far different than in federal court. The way I read the reform, it will be much easier for a party to obtain summary judgment since Oklahoma will now require a party to both refute alleged undisputed facts and come forward with facts that are in dispute.

4. Contingency Fees Capped

To borrow your phrase, that discussion is so two months ago:

http://www.tulsanow.org/forum/index.php?topic=12702.0

We've had that debate already, I don't want to plow over that again.

I do take issue with several of your points about punitive damages in general, but I got to split out of here. Maybe tonight.

[Townsend]

Jiminy...what is this?  a contest?

I generally try to read all the entries, particularly from the intelligent folks on here...but I'm just too damned lazy for this thread...I'm going to pour a steaming cup of joe on my crotch.

Ciao

[guido911]

Jiminy...what is this?  a contest?

I generally try to read all the entries, particularly from the intelligent folks on here...but I'm just too damned lazy for this thread...I'm going to pour a steaming cup of joe on my crotch.

Ciao

Buh bye.

[Townsend]

Buh bye.

Oooo, good one.

[guido911]

Oooo, good one.

Seriously, if you are bored with a thread, leave it. Whining about the content of posts makes you look petty and perhaps as if you are hiding something...like, "I don't git what them big words mean."

[Townsend]

Seriously, if you are bored with a thread, leave it. Whining about the content of posts makes you look petty and perhaps as if you are hiding something...like, "I don't git what them big words mean."

Nah, I'm just tired of all your negative crap.

I think your pettiness star way outshines all others.

Being a hateful troglodyte gets you there much faster than the rest of us.

[guido911]

Nah, I'm just tired of all your negative crap.

I think your pettiness star way outshines all others.

Being a hateful troglodyte gets you there much faster than the rest of us.

Negative in this thread? I thought my debate with CF was informative.