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GAZETTE
JANUARY/FEBRUARY
19
Steps should be taken by the
courts of the various states to
adopt procedures for the control
and limitation of the scope and
duration of discovery in tort cases.
The courts should consider, among
other initiatives: (a) at an early
scheduling conference, limiting the
number of interrogatories any party
may serve, and establishing the
number and time of depositions
according to a firm schedule.
Additional discovery could be
allowed upon a showing of good
cause; (b) when appropriate,
sanctioning attorneys and other
persons for abuse of discovery
procedures.
Standards should be adopted
substantially similar to those set
forth in Rule 11 of the Federal Rules
of Civil Procedure as a means of
discouraging dilatory motions and
frivolous claims and defences. Trial
judges should carefully examine, on
a case-by-case basis, whether
liability and damage issues can or
should be tried separately. Non-
unanimous jury verdicts should be
permitted in tort cases, such as
verdicts by ten of twelve jurors. Use
of the various alternative dispute
resolution mechanisms should be
encouraged by federal and state
legislatures, by federal and state
courts, and by all parties who are
likely to, or do become involved in
tort disputes with others.
6. Injury Prevention/Reduction
Because of t he increase in
malpractice actions and the effect
this has on insurance premiums,
greater attention should be paid to
t he d i sc i p l i n i ng of licensed
professionals through the following
measures: (a) a commitment to
impose
discipline,
whe re
warranted, and a substantial
increase in the funding of full-time
staff for disciplinary authorities.
Discipline should be lodged in the
hands of a state body, and not
controlled by the profession itself,
although professionals should have
a substantial role in the process; (b)
in every case in which a claim of
negligence is made against a
licensed p r o f ess i ona l, and a
judgment for the plaintiff is entered
or a settlement paid to an injured
person, the insurance carrier, or in
the absence of a carrier, the
plaintiff's attorney, should report
the fact and the amount of
payment to the licensing authority.
Any agreement to withhold such
information and/or to close the files
from the disciplinary authorities
should be unenforceable as con-
trary to public policy.
In addition to the above recom-
mendations the McKay Committee
also recommended that three
further studies be carried out to
complete the picture required for
comprehensive tort reform:
1. Insurance Liability System
The Committee recommended that
further studies are required, to
consider the question of regulating
the insurance sector, to examine
the effect of high interest rates on
liability premiums, to examine the
intensive competition that exists
between insurance companies and,
finally, to examine the anti-trust
exemp t i on ex t ended to t he
insurance industry in the United
States.
2. The Problem of Mass Torts
The Committee felt that where
Mass Torts occur, such as in the
Thalidomide cases, different con-
s i de r a t i ons mi ght apply and
different methods of handling these
claims ought to be considered.
3. Jury Awards
The Committee felt that there
was very little information available
HANDWRITING
& SUSPECT
DOCUMENT
ANALYSIS
T . T . W . A L L EN
"Seaview",
Ballyguile, Co. Wicklow,
(0404) 69266 (anytime)
on jury awards in the United
States and that greater and more
detailed studies were required in
this matter.
The A.B.A.'s report is but one
recent response to the "insurance
crisis". At state level there have
been several legislative initiatives
and most states have, in recent
years, adopted some new reform-
ing legislation. This legislation has
attempted to cover the following
problems in particular:
(a) CAP Statutes
Many states have introduced
statutes which put ceilings on
the maximum awards which
can be given in non-economic
losses, (i.e. for pain and
suffering), for personal injury
cases.
(b) Collateral Benefits
Many states have introduced
legislation which obliges the
Courts to take into account
when awarding the plaintiff
damages any
collateral
benefits which the plaintiff
may get, for example, by way
of
we l f a re
paymen t s,
insurance benefits, etc.
(c) Instalment Payments
Some states have introduced
provisions wh i ch wou ld
enable the courts to award
t he p l a i n t i ff
i ns t a lment
payments. This is to circum-
vent the injustice of the lump
sum, once-and-for-all type of
payment that characterises
the common law tort system.
(d) Lawyers' Fees
Many statutes attempt to
limit and control the lawyers'
fees in civil litigation and in
particular attempt to tackle
the contingent fee problem by
placing a max imum (e.g.
30%) on the size of the
lawyer's fee in these cases.
(e) Limitation Periods
Some states address the
problem of limitation periods
by insisting that a shorter
period should apply in some
types of cases especially e.g.
in malpractice cases, so that
the period of liability would be
limited and quantifiable and
thereby more amenable to
insurance management.
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