The Gazette 1988

GAZETTE

JANUARY/FEBRUARY

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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

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. 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. (b) Collateral Benefits

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.

(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. 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. 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.

HANDWRITING & SUSPECT DOCUMENT ANALYSIS

(d) Lawyers' Fees

(e) Limitation Periods

T . T . W . A L L EN "Seaview", Ballyguile, Co. Wicklow, (0404) 69266 (anytime)

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