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Two New Salvos in the Tort Debate

Is it broke and does it need fixing? That is the perpetual question about the tort system in the United States. This week brought two further contributions to the debate, one proposing a system of early offers in tort cases and the other debating whether the British rule could work in America.

First up, Insurance Journal reports on "A Recipe for Balanced Tort Reform," a new book in which two law professors propose an "early offers" program for quickly settling medical malpractice and product liability lawsuits. University of Virginia law professor Jeffrey O'Connell and Widener law professor Christopher J. Robinette propose that defendants be given the option of making an early offer within six months after a claim is filed. The defendant would guarantee periodic payments of medical expenses and lost wages, plus 10 percent for attorneys' fees, but pay no compensation for pain and suffering. For defendants, the plan would cut both the time and cost of litigation, they say. For plaintiffs, it would eliminate the waiting and uncertainty of a protracted lawsuit.

Next to the podium, NewTalk this week hosted a panel of 16 eminent lawyers and law professors to debate whether the United States should adopt a loser-pays rule for tort cases. Two early comments perhaps frame the discussion. The Manhattan Institute's Walter Olson says the loser-pays idea continues to have legs because it "polls very well with the public." But Sidley Austin partner James D. Zirin responds that loser pays "is simply un-American and is certainly in many cases unfair." While there is no consensus among the panelists, the prevailing sentiment seems to be that captured in a comment by National Journal columnist Stuart Taylor, "that a broad loser-pays regime might be a cure worse than the disease or be undermined by judicial reluctance to require losing plaintiffs .. to pay defendants' fees."

If it ain't broke, don't fix it, they say. In the case of the tort system, perhaps even if it's broke, attempts to fix it would be fruitless.

Posted by Robert J. Ambrogi on August 21, 2008 at 01:36 PM | Permalink | Comments (1)


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