What is the purpose of the tort system or a negligence system?
The purpose of the tort system is to permit the Court, as an impartial fact finder, to see that compensation is provided to an individual who has been wronged or injured by the negligent or careless activity of another person. There may not be a contract between the people or between someone and a company, but there is that common duty of care owed by each and every one of us and breach of that duty to exercise reasonable care will, in our system, lead to compensation. It prevents human nature's eye-for-an-eye system from taking root in America to deal with real wrongs to individuals and companies.
What is Negligence?
Negligence is the failure on the part of a person or a company to live up to the standards of care owed by each and every one of us to ourselves and to others; it is known as the reasonable man standard and people are expected to live up to the standard of care of a reasonably prudent person under like circumstances. Failure to live up to that standard is negligence. Negligence is a legal doctrine that requires a jury or a judge to determine whether a defendant violated the common duty owed by all of us to each other to exercise reasonable care for the safety of others. The landlord generally owes a duty to exercise reasonable care to protect people on their property from unreasonably dangerous conditions about which they are aware or should have reasonably been aware or that the property owner created or caused. A general contractor or builder owes a duty to exercise reasonable care so as to not harm other workers on the job site. A driver owes a duty to exercise reasonable care to protect pedestrians, bicyclists and other motor vehicle users from injury. Should a person or company be negligent and cause injuries, that person is legally reasonable to compensate the victim for those damages.
What are the elements of a negligence case?
The Court would instruct a jury with regard to a negligence case that there are four elements and that the plaintiff has the burden to prove each of the four elements. Those elements are the existence of a duty of care which is a question of law for the judge, and the Court will instruct a jury on whether there is a duty of care or not. Breach of that duty of care! By that the law means was the defendant negligent. There has to be causation, also known as proximate causation, between that breach of a duty of care or that negligence and some harm or injury or damage to somebody. Then lastly, damages must exist and the plaintiff has the burden of proving the nature and the extent of the damages.
What are Damages?
Damages are that amount of money which a judge or jury determines would fully and fairly compensate, not punish a defendant and not reward a claimant, but compensate a claimant for injury or harm suffered as a result of the wrongdoer's negligence. Damages customarily include reimbursement for the fair and reasonable medical bills and charges, for the impairment to one's earning capacity as frequently measured by out of pocket wage loss and that amount of money which fully and fairly compensates a person injured as a result of the wrongful acts of another for the pain, the suffering, both physical and mental or emotional, the disability, the loss of enjoyment of life and other like intangible harms caused by the negligence.
Compensation is simply an amount of money which is determined by the jurors to represent that amount of money which would fully and fairly compensate a plaintiff for an injury caused by someone else. It will not reward a plaintiff for having been injured; it will not punish a defendant for having caused such harm. It is simply intended to be that amount of money which equalizes the playing field so that the victim of someone else's negligence is not alone to suffer the pain or the damage without any assistance from the perpetrator who would otherwise walk free.
What is "Comparative Negligence"?
"Comparative negligence" is a legal doctrine by which a jury or a judge assesses the degree of negligence of a plaintiff, vis-à-vis each of the actual defendants in a lawsuit. If a plaintiff is 51% at fault vis-à-vis all the defendants, the plaintiff recovers nothing. To the extent the plaintiff is 50% or less comparatively negligent or at fault than the defendants together, the plaintiff will recover damages less the percent that represents plaintiff's own comparative negligence percentage.
This doctrine was enacted in order to ameliorate the harm caused to many plaintiffs when 1% negligence on the part of a plaintiff was a complete bar to any recovery at all.
Must I try my case if I have been injured by someone else?
No, the short answer is no. Every case can, if the parties are willing, be settled. A settlement occurs when a defendant is at last offered that amount of money which makes it more worthwhile for a plaintiff to resolve the case than it is to take the risk of trying the case. A good settlement sometimes has been said to make both parties unhappy, sometimes it actually does make both parties happy, but the bottom line on settlement is that it will not occur fully and fairly, providing compensation to a client injured by negligence, unless the case is ready to be tried. Most cases are as a practical matter settled, not tried; but your case must be prepared for trial in almost every situation for the insurer to pay the full and fair settlement amount. And it must be well prepared!
Is trial a scary experience?
No! By the time trial is scheduled and then held, you will be as comfortable as possible with your case, your lawyer and the court process. We would have met often, answered interrogatories, probably prepared for your deposition by the other lawyers and then attended the deposition. We will discuss step by step what is involved with the trial process and you while perhaps apprehensive will certainly become comfortable as the trial unfolds and you will probably enjoy seeing American justice in action. It is inconvenient; it will require your attendance on each trial day, perhaps a week or so, but it is inconvenient for everyone involved: jurors, witnesses and experts. But they give up their time as part of the public's commitment to the American justice system and the need to participate in the jury system.
What is alternative dispute resolution?
Alternative dispute resolution takes several forms. It is an alternative to the traditional form of dispute resolution, which is simply to permit a judge or a jury to make the final decision. It is a method in part of facilitating supplemental resolution of cases by the parties. The alternative dispute resolution procedure which facilitates settlements is called mediation. Mediation involves appearing before an impartial third party, usually a lawyer or retired judge, who has, as his or her only goal, the settlement or resolution of that dispute. Another form of dispute resolution is one which does not involve settlement, but involves a different method of having a third party make a decision. Instead of a judge or a jury, an arbitrator can be appointed to make the decision about what the outcome of a case is. An arbitrator is empowered to make that final decision and to assess damages as part of it. The decision of an arbitrator is much less reviewable than the decision of a court. Essentially, an arbitrator's decision can only be reversed for lack of good faith or fraud or conflict of interest.
How does the mediation process work?
The mediation process works by the parties to a case, and each of the principal decision makers for each side, and each of the attorneys for each side, going to a neutral location. That neutral location is usually the mediator's office. Mediators are specially trained to listen, sensitize themselves to the issues and bring the disputing parties together into a resolution. The parties will typically all meet together in one room around a conference table and the mediator will explain the process in more detail. The mediator typically explains that each side will have an opportunity to present its views, something in the nature of an opening statement in Court, then comments or questions are exchanged, and the mediator may make some inquiries at that time. The parties will be then broken into two or more groups, in effect isolated from each other for a number of reasons. Some will be escorted to another room and the mediator will do a bit of a back and forth between all of the parties, visitting each of those rooms. During those visits, the mediator will discuss the case and the best parts and the weakest parts of each case and attempt to determine what direction the settlement should begin to take. The mediator acts largely as a go-between, but a good mediator is not simply one carrying numbers back and forth, offers and demand, changes to the same, but does attempt to facilitate an understanding on the part of all parties as to where their common interest best lies. Some mediators are evaluative in this process from the beginning, others are more evaluative only towards the end of mediation and has not yet successfully resolved the case. Hopefully, before the close of the mediation, the parties will have reached an accord and executed a preliminary settlement agreement outlining the terms promising to act in good faith to prepare and execute releases and closing papers for any suit that may have been filed.
How does an arbitration proceed?
Arbitrations proceed by the parties all appearing before an arbitrator, that third-party impartial decision maker, usually at the arbitrator's offices. Before that hearing starts, there probably would have been a preliminary conference, by telephone or in a more complex, rather than a more ordinary case, by a meeting in person with the arbitrator. At the arbitration, witnesses are introduced, just as in court, and they are examined and cross-examined but usually an arbitrator is more involved in follow-up questioning and making sure that he or she understands the testimony than a judge in a court. It is rare for jurors to be permitted to ask questions and judges are less inclined than arbitrators to ask questions of witnesses. The hearing can proceed witness by witness over the course of whatever time is necessary to complete it, various papers can be filed by the parties, including arbitrator memoranda at the outset, motions, and closing papers. The arbitrator will then make a decision after having heard argument from all sides. The benefits of an arbitration over a courtroom trial are that it can proceed more quickly, can be initiated far more quickly and be resolved far more quickly than any lawsuits can be resolved and the hearings are private, not open to the public and the expense is substantially less than the costs of a trial which can be more protracted, multiplying the hoursof lawyer and consequently fees and usually arbitrations involve substantially less discovery and are less expensive in that sense and are less invasive of the parties' time and records. Arbitration is frequently used to resolve construction and other contract cases; it can and is often used in serious personal injury or even death cases by agreement of the parties. Much of what is done in a construction or contract arbitration is agreed upon before the contract or work giving rise to an arbitration commences and arbitration clauses in the contractual arrangements and the parties can, in many respects, arrange the decision-making process by agreeing before a dispute occurs to certain discovery or stipulating as to witnesses and procedures to be followed. It is often said that the arbitrator is the judge and the jury in a case. There is generally no appeal from the arbitrator's findings.
At what stage can parties mediate a case or arbitrate a case?
Parties may agree to mediate a case long before it is even a case; they can agree to mediate a claim or a problem or a dispute at any time they want to do so. Similarly, they can agree at any time they want to, to arbitrate a dispute to try to seek resolution in that fashion. They can do it by agreement even while a lawsuit is pending, but it would dispose usually of the lawsuit itself and that would be the purpose of mediating the matter in that fashion.
