A.20. ATRA

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A.20. ATRA
2013-10-12 10:06:30

A.20. ATRA
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  1. Joint and several liability
    • joint and several: may recover 100% of damages from any liable defendant if others are unable to pay their share
    • neither fair or rational
    • ATRA supports replacing this by proportionate liability
    • moderate approach 1: bar application of joint and several to recover non-economic damages
    • moderate approach 2: bar application for defendant responsible for less than a % of harm
    • 39 states modified
  2. Collateral source rule
    • evidence of collateral isn't admitted
    • 24 states abolished, 2 had reform sunk down as unconstitutional
  3. Punitive damages
    • not compensation for plaintiff but punishment for defendant
    • suggested reform 1: establish liability trigger
    • suggested reform 2: require clear and convincing evidence
    • suggested reform 3: require proportionality so punishment fits offence
    • suggested reform 4: enact federal legislation to address multiple punitive damage awards
    • 33 states have reformed laws, 1 struck down
  4. Noneconomic damages
    • very difficult to assign dollar value
    • ATRA believes that the broad and unguided discretion given to juries is the single greatest contributor to the inequities and inefficiencies of the tort liability system
    • 23 modified, 4 struck down
  5. Prejudgement interest
    • many states allow it to compensate for lag and encourage early settlement
    • although well intended, practical effect can be inequitable and counter-productive
    • can result in overcompensation, hold defendant responsible for delays it may not have caused, impede settlement
    • 22 reforms
  6. Product liability
    • meant to compensate persons injured by defective products
    • does not send clear signal about how to avoid liability
    • can hold manufacturer liable for failure to adopt a certain design or warning even if neither knew nor could have anticipated the risk
  7. Class action reform
    • now considered as a mean for defendant extortion
    • in many cases, victimized consumer receives pennies or nearly worthless coupons, while plaintiffs' counsel receives millions in legal fees
    • 11 reforms
  8. Attorney retention sunshine
    • in litigation against tobacco, many attorneys were retained to assist in litigation - turns out they billed fake hours and inside dealing
    • attorney sunshine legislation requires legislative approval
    • 14 reforms
  9. Appeal bond reform
    • some states require post appeal bonds of up to 150% of verdict
    • appeal bond waiver limits the size of bond when company is not liquidating its assets or attempting to flee from justice
    • 39 adopted
  10. Jury service reform
    • juries have become less & less representative of community
    • 20% don't respond, mostly because conditions make it difficult for working Americans to serve on a jury so it disproportionately excludes perspective of many people who understand the complexity of issues at play
    • ATRA suggestions:
    •     eliminate occupation exemptions
    •     ensure only those who experience true hardship are excused
    •     provide jurors flexibility in scheduling their service
    •     protect employees from adverse action at workplace
    •     establish lengthy trial fund
    • 14 states enacted