X-Virus-Scanned: clean according to Sophos on Logan.com Return-Path: Sender: To: lml@lancaironline.net Date: Fri, 01 Sep 2006 00:13:44 -0400 Message-ID: X-Original-Return-Path: Received: from elasmtp-spurfowl.atl.sa.earthlink.net ([209.86.89.66] verified) by logan.com (CommuniGate Pro SMTP 5.1c.3) with ESMTP id 1358671 for lml@lancaironline.net; Thu, 31 Aug 2006 18:25:25 -0400 Received-SPF: neutral receiver=logan.com; client-ip=209.86.89.66; envelope-from=mnewman@dragonnorth.com Received: from [66.92.93.226] (helo=PCmike2) by elasmtp-spurfowl.atl.sa.earthlink.net with asmtp (Exim 4.34) id 1GIuxq-0003dO-8I for lml@lancaironline.net; Thu, 31 Aug 2006 18:24:46 -0400 From: "Michael Newman" X-Original-To: "'Lancair Mailing List'" Subject: Torts X-Original-Date: Thu, 31 Aug 2006 18:26:11 -0400 Organization: Dragonnorth Group MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_038C_01C6CD2A.EFA2C420" X-Mailer: Microsoft Office Outlook, Build 11.0.6353 X-MimeOLE: Produced By Microsoft MimeOLE V6.00.2900.2962 Thread-Index: AcbNTHZBvF76WhmHQhqqBU4TbCKILQ== X-Original-Message-ID: X-ELNK-Trace: 4981850a937e3365551c28c27865cf0a239a348a220c260903ef3b1067f07319a21e4d627556d9f73ca473d225a0f487350badd9bab72f9c350badd9bab72f9c X-Originating-IP: 66.92.93.226 This is a multi-part message in MIME format. ------=_NextPart_000_038C_01C6CD2A.EFA2C420 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Our legal system allows for contingency cases as a method of giving access to the courts to those without the assets to hire counsel. This is a deliberate and well intentioned strategy. I think it is also a good idea. The system does lack checks and balances. The "loser pays" system has the problem that it goes too far. Contingency representation would die because the case might be lost and the counsel would be too much at risk for the costs. The facts are not known in advance of a suit. The suit itself provides methods of coercive discovery of the facts. The current system does not encourage cases to be dropped once the facts are well enough established for the counsel involved to have a good sense of the outcome. I have long advocated a system that divides cases into three possible results: 1) Damage was done and damages are awarded including costs of counsel and courts, possibly including punitive damage. 2) No damage was done but a legitimate question was brought to the court. Neither side pays. 3) Damage was not done and the question brought to the court was not legitimate. The loser pays. The jury decides the type of result. The court determines the costs that the plaintiff pays in case 3 and awards payment to the defendant. I think that the counsel for the plaintiff should be the guarantor of these damages only to the extent that the counsel benefits from any award in case 1. Thus counsel hired for a fixed fee would not be at risk for following the demands of their client. The advantage of this system is that contingency lawyers can determine for themselves if a case falls into group 1 or 2 vs. group 2 or 3. They are encouraged to do their homework up front and are motivated to pursue cases that are likely to be legit and to avoid spurious cases where there is a good chance they will get stung. _____ Michael Newman Dragonnorth Group 319 Dean Rd. Brookline, MA 02445 Cell: 617 821-4608 Home: 617 566-7975 Fax: 617 566-7975 www.dragonnorth.com mnewman@dragonnorth.com ------=_NextPart_000_038C_01C6CD2A.EFA2C420 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable
Our = legal=20 system allows for contingency cases as a method of giving = access to=20 the courts to those without the assets to hire counsel. This is a=20 deliberate and well intentioned strategy. I think it is also a = good=20 idea.
 
The = system does lack=20 checks and balances. The "loser pays" system has the problem that it = goes too=20 far. Contingency representation would die because the case might be lost = and the=20 counsel would be too much at risk for the costs.
 
The = facts are not=20 known in advance of a suit. The suit itself provides methods of coercive = discovery of the facts. The current system does not encourage cases to = be=20 dropped once the facts are well enough established for the counsel = involved to=20 have a good sense of the outcome.
 
I have = long=20 advocated a system that divides cases into three possible=20 results:
 
    1) Damage was done and damages are awarded including costs of = counsel and=20 courts, possibly including punitive damage.
    2) No damage was done but a legitimate question was brought to = the court.=20 Neither side pays.
    3) Damage was not done and the question brought to the court = was not=20 legitimate. The loser pays.
 
The = jury decides the=20 type of result. The court determines the costs that the plaintiff pays = in case 3=20 and awards payment to the defendant. I think that the counsel for the = plaintiff=20 should be the guarantor of these damages only to the extent that the = counsel=20 benefits from any award in case 1. Thus counsel hired for a fixed fee = would not=20 be at risk for following the demands of their = client.
 
The = advantage of=20 this system is that contingency lawyers can determine for themselves = if a=20 case falls into group 1 or 2 vs. group 2 or 3. They are encouraged to do = their=20 homework up front and are motivated to pursue cases that are likely to = be legit=20 and to avoid spurious cases where there is a good chance they will get=20 stung.
 

Michael Newman

Dragonnorth=20 Group

319 Dean Rd.
Brookline, MA 02445

Cell: 617=20 821-4608
Home: 617 566-7975
Fax: 617 566-7975

www.dragonnorth.com

mnewman@dragonnorth.com
 
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