Lawsuits causing swing sets to be removed from schools

[dross]

It's obvious that you have far more confidence in the jury system than I do. Good for you, though. I'm idealistic about some things, but citizens nullifying the law? Unfortunately I don't place so much confidence in my fellow man--even though I do believe he can be trusted with liberty.

We have so many people locked up in this country, though, that it's completely out of control. I wonder if we'll ever learn?

It's not confidence, it's belief in principle. Why is a juror a poorer judge of the law than a judge? I would think a judge, having a more abstract view of the law, would be a poorer judge than a juror who looks at a particular case and sees it through the eyes of a common man.

Going back to one of my favorite examples, that you can be guilty of manufacturing an "Any other weapon," if you happen to sell a rifle, keep its vertical grip, and you also happen to have a pistol with an accessory rail. A judge might see a technical violation of the law, but a juror is more likely to say, "I don't care what the law said, clearly nobody manufactured anything."

Also, by nullifying a law, the worse thing that happens is a guilty person goes free. Without nullification, there can be a far worse consequence: A many loses his life, liberty and property for an unjust law.

I trust my fellow man more than I do the legislators who make the law.

 

[downzero]

It's not confidence, it's belief in principle. Why is a juror a poorer judge of the law than a judge? I would think a judge, having a more abstract view of the law, would be a poorer judge than a juror who looks at a particular case and sees it through the eyes of a common man.

Going back to one of my favorite examples, that you can be guilty of manufacturing an "Any other weapon," if you happen to sell a rifle, keep its vertical grip, and you also happen to have a pistol with an accessory rail. A judge might see a technical violation of the law, but a juror is more likely to say, "I don't care what the law said, clearly nobody manufactured anything."

Also, by nullifying a law, the worse thing that happens is a guilty person goes free. Without nullification, there can be a far worse consequence: A many loses his life, liberty and property for an unjust law.

I trust my fellow man more than I do the legislators who make the law.

I'm not saying that I don't believe in nullification. I'm saying that I have very little confidence that the citizens will do it when it really matters.

If they did, we wouldn't have nearly as many people in jail.

 

[dross]

I'm not saying that I don't believe in nullification. I'm saying that I have very little confidence that the citizens will do it when it really matters.

If they did, we wouldn't have nearly as many people in jail.

I agree with you there. But then most people don't know about it and are specifically advised in jury instructions that they must vote a certain way if they find the facts to show certain things.

Just like most people don't know that the Grand Jury is in charge of the prosecutor, not vice versa.

I salivate for the day I get on a grand jury.

Put 'er in nuetral, push to the top of the hill, then enjoy the ride.

 

[CarmelHP]

What do you really mean by "tort reform"?

If, by that, you mean caps on compensation, I'd say that's a bad idea.

With you so far.

If you mean limiting the number of causes of action, I'd say that's a great idea.

Really, which ones, and why?

 

[downzero]

I agree with you there. But then most people don't know about it and are specifically advised in jury instructions that they must vote a certain way if they find the facts to show certain things.

Just like most people don't know that the Grand Jury is in charge of the prosecutor, not vice versa.

I salivate for the day I get on a grand jury.

Put 'er in nuetral, push to the top of the hill, then enjoy the ride.

Does Indiana use grand juries for all criminal cases?

I'm sorry for my ignorance, but, for the record, I'm not originally from Indiana, I don't attend law school in Indiana, and I haven't taken criminal law at all. So before anyone jumps down my throat, I just wanted to point that out.

 

[CarmelHP]

There are plenty of people who need to go home with the "you don't have a case" speech. There are also plenty of people who will never walk in the door and tell their story who do have a case. The problem isn't too many cases, it's not enough of the right types of cases.

Actually, telling a client, "you don't have a case," is a good way for a lawyer to be sued for malpractice. I went to a discussion at George Mason about 5 years ago in which research on tort cases was being presented. The conclusion, in a nutshell, was that about one third of cases had merit and the award matched damages. One third had merit and a case was never brought or, if it was, the award was grossly under damages. One third of the cases was meritless or had awards grossly above actual damages. Anyone who can design a better system is invited to try.

 

[CarmelHP]

Does Indiana use grand juries for all criminal cases?

I'm sorry for my ignorance, but, for the record, I'm not originally from Indiana, I don't attend law school in Indiana, and I haven't taken criminal law at all. So before anyone jumps down my throat, I just wanted to point that out.

Most charges are brought by information, grand jury indictments are rare.

 

[hornadylnl]

Actually, telling a client, "you don't have a case," is a good way for a lawyer to be sued for malpractice. I went to a discussion at George Mason about 5 years ago in which research on tort cases was being presented. The conclusion, in a nutshell, was that about one third of cases had merit and the award matched damages. One third had merit and a case was never brought or, if it was, the award was grossly under damages. One third of the cases was meritless or had awards grossly above actual damages. Anyone who can design a better system is invited to try.

One lawyer we talked to wanted so much for a retainer and so much an hour and even still sounded way less than excited about taking the case. The last one my brother talked to wanted $2k up front and $200 an hour. He seemed to think we had a case. I have more respect for the first lawyer. The latter will win whether we win or lose our case because he's getting paid regardless.

If a lawyer truly thinks you have a case, why wouldn't he do it for just a percentage of the final award? I told my brother I'm not willing to pursue it. I'm already out $15k and I'm not going to risk $5k+ more in hopes that I'll get my $15k back.

 

[downzero]

Really, which ones, and why?

How about "negligent infliction of emotional distress"? Is that a tort we need?

I have to be really careful opining in the area of complete elimination of causes of action. But I do think there are torts that ought not exist, at least some.

 

[CarmelHP]

One lawyer we talked to wanted so much for a retainer and so much an hour and even still sounded way less than excited about taking the case. The last one my brother talked to wanted $2k up front and $200 an hour. He seemed to think we had a case. I have more respect for the first lawyer. The latter will win whether we win or lose our case because he's getting paid regardless.

If a lawyer truly thinks you have a case, why wouldn't he do it for just a percentage of the final award? I told my brother I'm not willing to pursue it. I'm already out $15k and I'm not going to risk $5k+ more in hopes that I'll get my $15k back.

Being "less than excited" is not the same as telling someone that they don't have a case and shouldn't pursue it. The latter could get a lawyer sued. I was "less than excited" about your case too after reading your description. Like it or not, lawsuits are driven by CLIENTS and their demands, people just like you.

 

[CarmelHP]

How about "negligent infliction of emotional distress"? Is that a tort we need?

I have to be really careful opining in the area of complete elimination of causes of action. But I do think there are torts that ought not exist, at least some.

Yes, if your child is crushed to death before your eyes by a driver that was talking on her cell phone while putting on her makeup, do you think no harm was suffered by you for witnessing it? NIED is so constrained and limited in practice that it is very hard to recover under it in most jurisdictions.

 

[hornadylnl]

Being "less than excited" is not the same as telling someone that they don't have a case and shouldn't pursue it. The latter could get a lawyer sued. I was "less than excited" about your case too after reading your description. Like it or not, lawsuits are driven by CLIENTS and their demands, people just like you.

In my case, there were no laws broken but it is clear that the will was circumvented. Just about anybody could see it. The lawyer that drafted the will has stated such even to the lawyer handling the estate. In our case, we'd have to prove that the executor didn't act in a fiduciary manner. Basically, all we have is he said/she said and which side the jury wants to believe. Who does the jury think is more "greedy" than the other.

The issue was that all taxes and expenses would be paid from the estate. The executor (then poa) put almost all money coming into the deceased's accounts into joint accounts with the executors name on them, thus shielding that money from paying all taxes and expenses. She left a token amount in the account that the deceased was the sole owner and it was quickly eaten up by funeral expenses, lawyer fees, etc.

We already know much more of what went on than what the estate lawyer or executor thinks we do. But merely doing the discovery to get hard info would cost thousands. I wrote it off as the executor will get theirs in the end. Karma sucks.

 

[downzero]

Yes, if your child is crushed to death before your eyes by a driver that was talking on her cell phone while putting on her makeup, do you think no harm was suffered by you for witnessing it? NIED is so constrained and limited in practice that it is very hard to recover under it in most jurisdictions.

The real question is whether or not I think it's a compensable harm. And the answer is no. I don't think, even in your fact pattern, that any compensation is warranted.

A suit should be brought for wrongful death and it should end there.

But reasonable minds differ, and that's why we're stuck with so many causes of action.

 

[Expat]

Yes, if your child is crushed to death before your eyes by a driver that was talking on her cell phone while putting on her makeup, do you think no harm was suffered by you for witnessing it? NIED is so constrained and limited in practice that it is very hard to recover under it in most jurisdictions.

Isn't that addressed directly in the wrongful death law? I remember at one time all you could receive was basically funeral expenses. Then they went to a capped amount (forget if it was $100k or $300K). Then the cap came off.

 

[Eddie]

Yes, if your child is crushed to death before your eyes by a driver that was talking on her cell phone while putting on her makeup, do you think no harm was suffered by you for witnessing it? NIED is so constrained and limited in practice that it is very hard to recover under it in most jurisdictions.

NIED=easy to argue, hard to dispute.

 

[downzero]

NIED=easy to argue, hard to dispute.

Ha, if it's so easy to argue, I've got an assignment for you.....

kidding of course.

 

[CarmelHP]

I think y'all missed this line.

NIED is so constrained and limited in practice that it is very hard to recover under it in most jurisdictions.

 

[downzero]

I think y'all missed this line.

Not only would I agree with that, but it's totally unrecognized in other places. And that tort should go the way of the dodo bird.

You want to talk about tort reform? Start with narrowing the broader causes of action and eliminating the unnecessary ones.

No matter how extreme the facts, NIED is bunk.

 

[Bill of Rights]

Did you write this post under the assumption that I wasn't aware of jury nullification?

Let's just say that I'll never be on a jury....because I'd be very clear about nullifying the law if I were ever called.

I'd also say, on an informal basis, law professors are opposed to the concept. It doesn't come up often, but every professor I've ever had who has mentioned it in class, has been critical of the concept, if not downright hostile (this includes my two undergrad professors who were law professors or had previously worked as one).

You personally? No, but it was possible. Far more likely, though, that someone else out there reading might not be aware of it. That's one I'll take many of the chances afforded me to "spread th' juuri nullificashun GOSpel! Preach it brutha!"

The best example I have yet seen on the topic was on a website describing a law that the defendant had obviously and admittedly broken. No contest, he admitted he'd done it, and the question was posed to the reader as a juror in that case: How say you? When someone said they would find for guilt, even knowing it was a capital crime, they were then told that the defendant would be put to death for hiding the family of Anne Frank from the Nazis.

Powerful stuff, that.

It's obvious that you have far more confidence in the jury system than I do. Good for you, though. I'm idealistic about some things, but citizens nullifying the law? Unfortunately I don't place so much confidence in my fellow man--even though I do believe he can be trusted with liberty.

We have so many people locked up in this country, though, that it's completely out of control. I wonder if we'll ever learn?

Actually, telling a client, "you don't have a case," is a good way for a lawyer to be sued for malpractice. I went to a discussion at George Mason about 5 years ago in which research on tort cases was being presented. The conclusion, in a nutshell, was that about one third of cases had merit and the award matched damages. One third had merit and a case was never brought or, if it was, the award was grossly under damages. One third of the cases was meritless or had awards grossly above actual damages. Anyone who can design a better system is invited to try.

A better system? Nothing wrong with this one except that the people are uninformed and are in some cases, intentionally kept that way, including judges holding attorneys in contempt if they mention the idea that the jury is expected to judge the facts AND the law, all while the judge specifically tells the jury otherwise. I was on a jury where that one happened. The charge was murder.

I think y'all missed this line.

+1 for the proper usage and spelling of "y'all"

Blessings,
Bill

 

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