Fixing the Legal System

[AndyZ]

If our current system is not completely busted, there's a lot of opinion out there that it is, myself included.  What could fix it?

I would like to see suggestions and solutions instead of pure pessimism.  Sure, there will be resistance to change by people who can abuse the system.  Let's talk about ways that things can be fixed instead of focusing on the power of those who will resist and lamenting that it cannot be done.

[Trieste]

What part of the legal system? The gripes that I've seen in this forum alone have been about all sorts of legislation (abortion, guns, censorship, drugs), taxes, the sex offender registry, child support, etc.

I'm of the firm opinion that if you don't like a law, then you should work to change it rather than just break it, but with what law should we start?

[AndyZ]

I was just thinking the courts.  I guess technically it's all part of the legal system, but the stuff with lawyers, judges and so on.

[Torch]

Tort reform, especially with regards to frivolous lawsuits, i.e. Your hot McD's coffee burned me so I'm suing you for $100 million in damages. It is also especially needed in the medical malpractice arena, as doctors are increasingly practicing "defensive medicine" by avoiding patients with conditions that can be seen as litigious, or dropping high risk medical specialties (like obstetrics) altogether.

[Trieste]

Ahm, the McD's is a really bad example, since the hot coffee burned the woman so badly she needed skin grafts... >.>; Unless you think that shouldn't be sue-able, but I personally think it is.

[Torch]

Fair enough, how about the family of Daniel Dukes filing a multimillion dollar lawsuit against SeaWorld Orlando for negligence in the death of their son? Daniel entered the park during operating hours, remained after closing and evaded security in order to climb into the killer whale enclosure. He was found dead of hypothermia the next morning.

His family sued on the grounds that the park didn't do enough to warn guests that killer whales might be....you know....dangerous, and that illegally sneaking into the tank in the middle of the night probably wasn't a good idea. Thankfully, they withdrew their case before it went to trial. 

[gaggedLouise]

IMHO it would be a bigger priority to see that courts (and the laws they operate from) get a bit sharper teeth to grapple with fraud, swindles, corporate and "creative" accounting crime and so on. Courts today often seem helpless against anyone who's charged with corporate malpractices, embezzlement or insider crimes in the financial and banking business. The courts are not near enough familiar with how business functions in the digital age and what has become possible to do, and often get talked around 360 degrees by people who were clearly deeply embroiled in whatever shady deals. And the laws, too, are often written for a pre-digital age when you couldn't hide behind a pseudo-identity hanging on just an e-mail box and a blind-alley cell phone number. It's a major problem in many countries and it's just too plain U.S. courts are suffering from that malady too.

[NotoriusBEN]

Get rid of legal-ese.
Put everything in plain, simple to understand english, and smite those that try to get around the spirit of the law through technicalities.

[Callie Del Noire]

No to mention you got some circuits being gamed by companies. Monsanto has one federal federal circuit court they like to us (the 9th) and it's almost impossible to win against them. If you got a strong case, they push to relocate to that court, then game the system till you run out of money, drop dead or they can do something to push it out.

Like the recent case organic growers brought against them. Their GMO plants are destroying the farmer's organic stock ..and using the same thing that Monstanto uses against other farmers tried to get protection..only to lose in a NY court and have it thrown out. Despite the fact that they had a credible case.

And for god sakes.. reform the IP laws.. I mean we got companies trying to copyright everything they can to charge folks for a dime. There are so many patent trolls out there it's rediculous.

[Serephino]

It's ridiculous to allow someone to break into another person's house, get injured, and sue for medical bills.  The one case I recall is the guy who fell on a table saw in someone's garage.  He flat out admitted he was robbing the place, and he won!  It wouldn't have happened had the dumbass not, you know... tried to break in...

[Oreo]

I hope I don't get slammed, but I would like to see equal representation. If the DA is granted funds to run DNA tests, the Public Defender should have the same grant. I don't want to see it as another set of loop holes, but a lot of people get railroaded into 'making a deal' for a lesser sentence, when they were actually innocent.

[Callie Del Noire]

Not at all. I think more DNA evidence should be considered.

My BIG issue with criminal proceedings is the use of the Sex Offender list by DAs as a way to plead down things. You got folks who, going on 10 and more years after their girl/boyfriends parents ratted them out the moment they came of age, who literally can't go to their kid's events.

Not to mention sexting shouldn't ruin your life forever. And other things we'd have done if the tech had been like it is now back when we were kids.

I mean, how many folks did the nasty as kids with the girl/boy of their dreams. MAYBE violating something they might or might not know about in the legal codex of their town/country/state.

A review of the offeneders list should seperate drunken stupidity (public urination), kids being kids, and such from pedophiles and rapists.

[Funguy81]

Get rid of legal-ese.
Put everything in plain, simple to understand english, and smite those that try to get around the spirit of the law through technicalities.

unfortunately the "spirit of the law" can be interpreted how ever the judge and lawyers can give out the better argument. its been known that one simple law can be read in one way, but interpreted in 10 different ways.

[vtboy]

unfortunately the "spirit of the law" can be interpreted how ever the judge and lawyers can give out the better argument. its been known that one simple law can be read in one way, but interpreted in 10 different ways.

This problem is more one of language than of the judicial system. Language never seems to be quite fine enough an instrument for articulating rules, especially when the factors shaping the events to which those rules will apply beggar prediction. Unless you can think of a better medium than language, though, I'm afraid we will always be stuck with some degree of legal vagary.

Tort reform, especially with regards to frivolous lawsuits, i.e. Your hot McD's coffee burned me so I'm suing you for $100 million in damages. It is also especially needed in the medical malpractice arena, as doctors are increasingly practicing "defensive medicine" by avoiding patients with conditions that can be seen as litigious, or dropping high risk medical specialties (like obstetrics) altogether.

Tort reform is not nearly as simple an issue as its advocates make it out to be.

There are, to be sure, too many frivolous lawsuits of all sorts. That said, the nonsensical tort verdicts that get splashed all over headlines and wailed about on the evening news tend to be aberrant. Moreover, they are frequently reduced or set aside on post-verdict motions or appeals. Judicial correction of runaway or legally groundless verdicts, to the extent it receives media coverage at all, tends not to appeal to emotion and is thus all too frequently ignored in the public debate.

In the medical malpractice arena, the extraordinarily high cost of litigation (primarily the fees paid to doctors who consult on the cases and testify as expert witnesses at trial) acts as a fairly effective brake on ill-considered suits. Costs in a complicated medical malpractice lawsuit can easily run well into six figures. For this reason, attorneys (who most often advance the costs and, in unsuccessful cases, are ultimately stuck with them) tend to reject cases which are marginal, either because the question of the doctor's malpractice is a close one or because the patient's injuries are not likely to garner a very large recovery. As a result, potential medical malpractice plaintiffs whose injuries are not fairly catastrophic are underserved, and doctors whose incompetence may have been ignored by colleagues and, but for the grace of god, might have caused far worse injuries, often get off scot-free. The enactment of legislation which would eliminate or drastically reduce recoveries for pain and suffering in medical malpractice cases can only be expected to exacerbate these problems. 

Product liability cases -- another favorite target of the so-called reformers -- likewise also frequently entail significant, litigation-dampening expense. In addition to the fees charged by medical experts who will testify about the cause, extent, and future consequences of the plaintiff's bodily injuries, there is the additional expense of having to hire well-credentialed experts on arcane matters of product design and manufacture, and on the body of applicable scientific knowledge. The result, again, is that plaintiffs' attorneys filter out a lot of marginal cases.

Another issue all too frequently lost in the furor over tort reform is the extent to which these cases, especially in the field of product liability, provide a form of salutary regulation not imposed by other organs of government, much less by industry. It is not such a bad thing, for example, that fingers are now protected by blade guards on circular saws, that lives and limbs of children are now saved by sensors in power car windows and garage doors, that cars are now designed so that their occupants no longer sit on top of exploding gas tanks, etc. And, I think, it is fair to question when, if ever, many of the product safety improvements we now take for granted would have been adopted, and when many toxic products (e.g., asbestos insulation) would have been eliminated from the marketplace, were it not for the exemplary power of an occasional staggering verdict. Unfortunately, though, the benefit of tort litigation for society in reducing the numbers of bad products and instances of substandard medical care is frequently ignored in the sturm und drang over the expense.   

Finally, while I am not unmindful that the economic interests of tort litigators push them to oppose reform of the system, it is perhaps worthwhile to inquire from what quarters come the hue and cry for verdict reduction. 

[AndyZ]

Everybody's been really civil, and I wanted to thank you all for that.

McDonalds:

Although there's no question that third degree burns are nasty, my understanding is that she had the cup between her legs and opened up the lid to add cream and sugar.  If I'm using a motorcycle to do wheelies without a helmet, I don't think I should be able to sue the company that made the motorcycle no matter how bad my injuries as a result.  There's no way it was only 20% her fault.

How would we decide these things, though, and where common sense should kick in?  In all honesty, I don't really know how it's done now.

Legalese:

I personally think that legalese is primarily designed so that those who aren't familiar with the legal system will have a much more difficult time reading and understanding the laws than those who are.

Now, language can absolutely be interpreted in ten different ways, but I feel like giving examples, using clarifying phrases and the like would go a lot farther than the current method.

It's not really fair to claim that ignorance of the law is no excuse and then turn around and have the law be too complex for everyone to understand.

It's ridiculous to allow someone to break into another person's house, get injured, and sue for medical bills.  The one case I recall is the guy who fell on a table saw in someone's garage.  He flat out admitted he was robbing the place, and he won!  It wouldn't have happened had the dumbass not, you know... tried to break in...

Now, there's a number of these from the Stella Awards, which according to Snopes are completely bogus.  I don't see the table saw one on there, but I also can't find it with a search.  If it's true, I absolutely agree, but I'm not sure how to phrase the fixing of the law.  Perhaps that you assume all responsibility for any damages incurred while unlawfully on someone else's property?  I know that there's a rule where you're allowed to shoot a trespasser, so it'd probably be part of that.

DNA:

I'm not sufficiently informed on this.  Is it that the DA is allowed to get a DNA test if they want in order to prove guilt but the defense isn't allowed to request it in order to prove innocence, so they hold it over their heads in order to force a plea bargain?  If I understand correctly, I can definitely see the reason for allowing the defense to use it also.

Really, I'm not sure how expensive DNA testing is, but if they have a definitive way to use that, it seems like it'd pretty much verify whether or not someone is guilty, and save on other court costs in the process.

Sex Offender:

Yeah, some of these laws are silly.  I'm not sure how to word it in order to change the law, though.

If anyone has specific fixes suggestions for these things, please feel free to explain them.

[Trieste]

My problem with tort reform advocates is that the anomalies are held up as 'standard'. The "ouch my coffee is hot so I'll sue!" disparagement is to tort reform what the 'welfare queen' is to welfare reform. It's a statistical anomaly that is held up as a reason to change a system that doesn't SEE those anomalies often. In fact, most discussions about 'fixing' a system seem to devolve into discussing said anomalies.

I also have to disagree with you on the ruling. There is hot coffee that will scald your tongue if you drink it, and there is hot coffee that will require the amputation of your tongue if you drink it. The ruling was also obtained after several attempts to settle with McDonald's for significantly less than the amount of the final judgement. She supposedly asked to settle for an amount that would cover medical bills and recovery time; McD's supposedly offered ludicrously low settlement amounts. I don't think "your coffee injured me severely and I would like you to pay the bill for that" is unreasonable, and since McD's refused to do that and took their chances at trial, I think they deserved the punitive damages judged against them.

Additionally, whenever someone disparages McD's as evil and then quotes this case as "Well duh coffee is hot", I have to cringe because essentially the person is parroting McD's spin on the case. If they're so evil, why believe their side of the story? But that's kind of a personal aside.

Whatever the case, it's a good example of why reform in general is such a heavily debated topic.

[Oreo]

DNA:

I'm not sufficiently informed on this.  Is it that the DA is allowed to get a DNA test if they want in order to prove guilt but the defense isn't allowed to request it in order to prove innocence, so they hold it over their heads in order to force a plea bargain?  If I understand correctly, I can definitely see the reason for allowing the defense to use it also.

This is pretty much it in a nutshell. If you are rich enough you can have your own DNA tests run at your own expense to prove your innocence. But, if you are represented by a public defender you have to rely on the states evidence presented to incriminate you.

[AndyZ]

I don't honestly know enough about tort reform in order to advocate it.  That's why I love seeing the back and forth of these types of topics.

I also don't drink hot coffee, so that makes me uninformed right there.  As I'm reading through some of the stuff on various sites about the case, though, a lot of it doesn't seem to make a lot of sense.  Like:

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat.

How are people drinking it, then?  Just typed, it sounds as though I'm being hyperbolous, but I honestly feel like that burns would be happening all the time if the coffee is hot enough to burn people.  Moreover, if she drinks it, she should know how hot it is and not to do dangerous things like taking off the lid in her lap.

I'll accept the idea that it's an anomaly, but if so, it seems much more likely to be the fault of the individual instead of the company.  After all, if 99% of people don't have any problems with something, and the 1% doing something unusual leads to the problems, maybe it's on that.

That said, if it is an anomaly, then it's good to hear that this isn't the norm.  Trieste, are there any issues with the legal system that you feel need addressed, or would you consider things pretty good as is?

This is pretty much it in a nutshell. If you are rich enough you can have your own DNA tests run at your own expense to prove your innocence. But, if you are represented by a public defender you have to rely on the states evidence presented to incriminate you.

I can understand the reasoning for the initial bit.  Back in the day, you were innocent until proven guilty, but since people no longer follow that formula, it makes more sense to allow people to prove their innocence.

I feel as though it would be better to go back towards the innocent until proven guilty model, but that would require a rewrite of society.  Since I have no idea how to do that, it would certainly be better to have allow the defense to use DNA tests as well.

An excellent fix, and thank you.

Edit: added a "but" after the hyperbolous statement because I noticed a goof, and adding this question:

Out of curiosity, how do they do lie detectors?  I think the prosecution can't ask for it but the defendant is allowed to offer it in order to prove innocence, right?

[Oreo]

Out of curiosity, how do they do lie detectors?  I think the prosecution can't ask for it but the defendant is allowed to offer it in order to prove innocence, right?

This is my understanding. However, even if it shows them to be innocent it isn't considered valid since some people can pass a test even when they are guilty, as well as some people, because of nerves, can fail when they are innocent.

[AndyZ]

But DNA wouldn't have that issue.  Thank you.

[Trieste]

How are people drinking it, then?  Just typed, it sounds as though I'm being hyperbolous, but I honestly feel like that burns would be happening all the time if the coffee is hot enough to burn people.  Moreover, if she drinks it, she should know how hot it is and not to do dangerous things like taking off the lid in her lap.

I could believe that with first, maybe second degree burns. Third degree burns are the ones where you don't generally even feel pain from the burn itself because it damages the nerves. People get those from fires, and from having pots of boiling water thrown on them. They should not get them from a consumable product. Mind, it would have been something else entirely if they had served her safe coffee and she had complained that it was too cold. But they served her unsafe coffee, and thank god she put it in her lap rather than trying to drink it because it would have caused quite a bit more damage. I think the McD's testimony was that they knowingly served their customers coffee at 100+ degrees because the expectation is that people will leave it in their cupholders and then drink it at work, so that might be a partial answer to why there wasn't a lawsuit sooner.

Or, it might not be an answer. What others might have been doing with their coffee, I don't know. Maybe it should have been a class-action lawsuit. Maybe she was the only one who could find a lawyer that didn't scoff. Maybe others tried to litigate and took the laughably low settlements because they were tired of going to court. There are several possibilities.

This is pretty much it in a nutshell. If you are rich enough you can have your own DNA tests run at your own expense to prove your innocence. But, if you are represented by a public defender you have to rely on the states evidence presented to incriminate you.

This is not entirely true, or if it is true then it is because someone is perverting the evidentiary system. Current standards are that the DNA lab - all its forensic biologists, its technicians, even the equipment - is there to represent the interests of the people of the state/county/city/whatever. This means they run the DNA and, in comparative cases, they offer statistical probabilities that two pieces of evidence came from the same place. Comparative evidence like DNA deals in statistics. If someone runs a sample, the result is not presented as "this is a match" (So much hate for CSI for using that terminology, asshats) but rather along the lines of, "The frequency of this particular DNA sequence in the population is one in nine billion". Since there are only like seven or eight billion people on the planet (I think it's still close to seven, right?) then that is taken to mean that it's, you know, from the same person.

So the numbers that come out are not always so certain, or the points of comparison are not as numerous as the scientist might prefer. A DNA comparison could turn out a genetic sequence that, say, one in three billion people might have. Which would mean that there are possibly two people out there with the same sequence of DNA, although it's highly unlikely that they would both rub their DNA on the same crime scene. Or a fingerprint found at the crime scene might have eleven points of similarity with the fingerprint of the suspect, when the official threshold for fingerprints that can be used in court is twelve points of similarity. Both lawyers can use that. The defense lawyer can bring the forensic biologist onto the stand and ask, "Was the DNA found at the scene unique to my client?" and the forensic biologist would truthfully reply, "No". There goes the DNA evidence, and in comes reasonable doubt for the jury.

So taxes pay for forensic laboratory services, and those labs function on behalf of the people - including the defendant.

Trieste, are there any issues with the legal system that you feel need addressed, or would you consider things pretty good as is?

Most of my feelings on the matter have been elaborated in the past. I think the war on drugs needs to end. I think the practice of trying and sentencing minors as adults even for heinous crimes needs to be revised. I kind of think the federal income tax and federal aid programs need to be abolished, but I'm still sort of thinking about that one. I don't know that the legal system needs to be 'fixed' so much as 'tweaked'.

[AndyZ]

I could believe that with first, maybe second degree burns. Third degree burns are the ones where you don't generally even feel pain from the burn itself because it damages the nerves. People get those from fires, and from having pots of boiling water thrown on them. They should not get them from a consumable product. Mind, it would have been something else entirely if they had served her safe coffee and she had complained that it was too cold. But they served her unsafe coffee, and thank god she put it in her lap rather than trying to drink it because it would have caused quite a bit more damage. I think the McD's testimony was that they knowingly served their customers coffee at 100+ degrees because the expectation is that people will leave it in their cupholders and then drink it at work, so that might be a partial answer to why there wasn't a lawsuit sooner.

Or, it might not be an answer. What others might have been doing with their coffee, I don't know. Maybe it should have been a class-action lawsuit. Maybe she was the only one who could find a lawyer that didn't scoff. Maybe others tried to litigate and took the laughably low settlements because they were tired of going to court. There are several possibilities.

Yeah, I feel like there's not enough evidence here to have a true discussion.

Most of my feelings on the matter have been elaborated in the past. I think the war on drugs needs to end. I think the practice of trying and sentencing minors as adults even for heinous crimes needs to be revised. I kind of think the federal income tax and federal aid programs need to be abolished, but I'm still sort of thinking about that one. I don't know that the legal system needs to be 'fixed' so much as 'tweaked'.

I'll leave this out there for people to debate ^_^

[Oniya]

Yeah, I feel like there's not enough evidence here to have a true discussion.

This might provide a starting point.

[Trieste]

Guh, thank you. I was trying to remember her name.

[Callie Del Noire]

This might provide a starting point.

Wow.. sounds like McDonalds could have avoided it by going with the offer that they originally asked for.