III.For Every Wrong There is a Remedy ...Or is There?
(ArticlesBase SC #2612641 from www.articlesbase.com)
by Ethel Dimont
Every student graduating from law school has heard the often cited words of the late Professor Prosser,“For Every Wrong,the Law Provides a Remedy.”This new graduate lawyer then begins his or her practice believing the law will provide a remedy for the victim who has been damaged or injured by some type of wrongful act.Many lay people,also believe this axiom.Only reality shows that with the vastness of our nation’s laws,many committed wrongs can be and often are,overlooked.
For the individual who sustains some quantum of injury or damage from a wrongful act,many obstacles must be overcome first before Lady Justice has her say.The law imposes strict criteria that must be met before it will recognize the victim’s claim and provide some redress or compensation for that wrong.
At the beginning the injured person spends most of their limited energy on getting better.It isn’t until much later,when getting better is impossible,that the injured party starts to seek legal help and becomes a client.The integrity and responsibility of the client is of paramount importance when presenting the details.
Finding a competent attorney,in the specific area of law required to handle your situation may be difficult.Finding someone who generates confidence and trust along with seeing the validity of your case is of primary importance.If there are any doubts,you can be sure negative situations will develop.But,before justice can be sought,both attorney and client need to understand the ramifications –both good and bad concerning the potential outcome of the case.Many questions will arise.The attorney should be willing to collect data and answer all objections concerning compensation for the client and the client must know that everything will be done to achieve the best results.
The attorney must be willing to answer as many of the client’s questions as possible to alleviate those doubts.The client’s confidence in knowing everything is being done to achieve the best results,helps make even a negative judgment easier to handle.
The United States of America’s legal system is based on the idea that a person or organization is innocent until proven guilty,placing the burden of proof,not on the wrongdoer but on the one who has been wronged.The client,unfamiliar with the ramifications of the law is unprepared for its requirements,which makes it difficult for the client to understand why their pain and suffering is not enough proof alone.No matter how valid the claim,if the injured party does not have enough satisfactory proof that the “wrongful act” actually caused or resulted in harm,then the case will be dismissed.The burden of proof requires,without the“wrongful act”,no harm or damage would have occurred.Just because someone“almost died” from that act is insufficient.Damages must be reasonably certain to exist,or to exist in the future.
One barrier in the fight for justice is Statute of Limitation.A Statute of Limitation is often a harsh barrier to otherwise legitimate claims.It can limit the time allowed to file a claim from as little as 90 days to as much as ten years.In medical malpractice,at the time of any accident,a claim must have been filed within two years of the act of negligence or two years from the time the healthcare provider committed the negligence.
Statute of Limitation is for the common good of the courts.Putting a time limit in which to place a case against someone has proven to be good when it comes to getting results in the court.This way records and eyewitness memories of the event are less likely to be lost.Only,it isn’t always good for the injured party,as rehabilitation of the injury may take longer than the time limitation of the statute.No provision is allowed in cases where the plaintiff did not file a case before the Statutes of Limitations has run out.
The success of the client’s case rests on presenting the evidence in such a manner so that a positive response is elicited from the jury.The opposition will do everything to present their case as if there is no culpability or responsibility on the defendant’s part.Witnesses will be called by both sides.Each will do their best to negate the testimony of the opposition in which to convince the judge and jury of the validity of their own case.The battle of wits and expert witnesses played out in the courtroom makes for a tense and uncertain trial and the winner may not always have right on their side.
What often appears to be a relatively simple case of medical negligence turns out to be a complicated,time-consuming battle.Few points are conceded by the defense.Every test result or finding turns out to be vague and in the gray area.Obvious negligence has convoluted,innocent sounding explanations.The defense will use a pre-existing disease,or “blame” the patient for not getting better,or alleged that the act really didn’t make a difference or cause the problem anyway.Such actions – often referred to as the conspiracy of silence – often occur behind the scenes to influence treating doctors and even their own experts.
Unfortunately,in the area of medical malpractice,the law’s only remedy is a judgment for money damages.A jury,in most cases,will determine whether you get a verdict,what it will be,as well as the amount of money to be awarded as compensation.Whether justice is done or whether the verdict is adequate,is in the eye of the beholder.I have seen many a client and many a doctor cry bitterly over a verdict.A verdict determines not only who wins or loses but who was right and who was wrong.A verdict is both a vindication and a rebuke.In a defeat,the Attorneys have learned how to accept a rebuke,now it will be the client’s turn.It is another burden added to those already caused by the original medical neglect.
Cooperation on the part of the client,concern and responsibility on the part of the attorney,should lead to a satisfactory conclusion,even if the final settlement is not what either had hoped to achieve.
Notes and Comments:
1.Why do we need the tort law at all? What does the tort law do in our life?These are the fundamental,or even philosophical questions that will not only affect our study of the subject,our future practice,but also the social norms that influence the standard of our behaviors.If we get a wrong message,it will spread out to society.For example,would you help an old person when s/he fell down?Dare you? It would almost be certain if the fallen guy sues you for injuries,and you cannot prove that it is not you who causes his fall.
2.When an old person falls down,you try to help.Result: he blames it on you to have caused the fall,thence,the injury.That’s not disastrous as every injured person would try to blame it on someone,anyone,or whoever he can get hold of.What’s disastrous is that the “law” would back him up by a ruling that “if you cannot prove that you are not wrong,you are then wrong.” What would be the legal basis for this kind of logic reasoning? “Fairness”,as some legal scholars suggested? Where is the fairness.We cannot simply name unfairness to be “fairness.”
3.These scholars quoted above seem to be preoccupied with compensating an injured person.Of course,we all sympathize with the injured.But tort law cannot be stretched so far as to reallocate resources from some private individual unrelated,unconnected and undetermined with any possible wrongdoing;tort law is not about compensation without liability.That’ll be insurance law.We should not get confused about this.
4.To make a wrong judgment in a private injury case is worse than hurting an innocent person,because tort law would set standard of social norms;it tells people how to behave.Today,how many people would “dare” to help? The result would almost be certain that the Good Samaritan would get himself entangled in the muddy water.
5.Note,however,that this kind of court ruling is a bad law in its worst form,and merely the opposite of the Good Samaritan Law.The Good Samaritan Law is designed to punish those who refuse to help or rescue even though it costs them little or nothing,or to protect those who do help or rescue.The court rulings seem to punish the Good Samaritans by telling people: you are to help at your own risks.
6.Kangaroo Court (Wikipedia.com)
A kangaroo court is a judicial tribunal or assembly that blatantly disregards recognized standards of law or justice,and often carries little or no official standing in the territory within which it resides.Merriam-Webster defines it as “a mock court in which the principles of law and justice are disregarded or perverted.” The term may also apply to a court held by a legitimate judicial authority who intentionally disregards the court’s legal or ethical obligations.
A kangaroo court is often held to give the appearance of a fair and just trial,even though the verdict has in reality already been decided before the trial has begun.Such courts are typically run by authoritarian governments,and can also be found in rural areas where legitimate law enforcement may be limited.In particular,they are still common in rural India,where they are referred to as “Khap Panchayat.”
7.Judicial Discretion (Wikipedia.com)
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion.Under the doctrine of the separation of powers,the ability of judges to exercise discretion is an aspect of judicial independence.Where appropriate,judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.
However,where the exercise of discretion goes beyond constraints set down by legislation,by binding precedent,or by a constitution,the court may be abusing its discretion and undermining the rule of law.In that case,the decision of the court may be ultra vires,and may sometimes be characterized as judicial activism.
Chief Justice John Marshall wrote in Osborn v.Bank of the United States (22 U.S.738 (1824)):
Judicial power,as contradistinguished from the power of the laws,has no existence.
Courts are the mere instruments of the law,and can will nothing.When they are said to exercise a discretion,it is a mere legal discretion,a discretion to be exercised in discerning the course prescribed by law;and,when that is discerned,it is the duty of the court to follow it.Judicial power is never exercised for the purpose of giving effect to the will of the judge,always for the purpose of giving effect to the will of the legislature;or,in other words,to the will of the law.
8.What is justice? Is getting the injured compensated justice,or getting the wrongdoer pay for the consequences of his wrongdoing? Well,as the old saying goes,justice is in the eye of the beholder.
There was an anecdote between Justice Holmes and Judge Learned Hand having dinner in New York.After the dinner,while Justice Holmes was leaving,Judge Hand said to him,“Do justice,Justice.” Justice Holmes stopped,turned around,and said,“That is not my job.My job is to apply the law.”
It sounds perfectly alright to argue that the ultimate purpose in the study and administration of the tort law,in fact,any law,is to do justice.But justice does not mean that every plaintiff vindicate;it does not mean that every loss is to be compensated;it does not even mean that our sympathies for any apparent victims have to be sustained.
When we look at a particular victim who is injured in a particular case,we have to first of all determine if indeed what he says is true of the facts in that case.Suppose it is,we then have to determine where we should draw the line – which is the law – to determine who is right and who is wrong,not to be hindered by our own personal sense of what is right and what is wrong.
This could also teach us something in reading cases: do not be bothered with the outcomes of the cases (who wins and who loses).The more important thing is to find out how the problem is identified and solved;can the rule established by the case be applied to more future cases? Or,we may have to face the result that what we say as the “law” will not be followed,or even called the “bad law,” as in the ashtray case where the court decree was simply ignored by the majority of the residents,and faced with public humiliation by being dismissed as despicable.
[1]This took place in 2000,about a decade before the current tort liability statute of China was enacted.
[2]See,Wang Liming,Defining tort law,lecture on cutting edge issues of civil and commercial law,Sept.10,2008,reproduced here in the Supplemental Reading II,available at http://www.lawinnovation.com/html/zgfx50rlt/598285703153.shtml.
[3]It is important to note that in China,at least before the enactment of the Tort Liability Law,every wrongdoing resulting in personal injury is treated as a criminal violation for which a sanction of prison term from a few months to a few years would be imposed.
[4]Butch Cassidy and the Sundance Kid is a must-see 1969 legendary and classic Hollywood movie,starring Paul Newman,Robert Redford,and Katherine Ross,based on a romantic story of two western outlaws who robbed banks and the Union Pacific Railroad,and ran successfully ahead of their trackers.The movie became an immediate hit,and in my view,the best one ever made in Hollywood.
[5]The plaintiffs proposed the following jury instructions: When the evidence shows that a driver of a motor vehicle on a public street or highway loses his ability to safely operate and control such vehicle because of some seizure or health failure,that driver is nevertheless legally liable for all injuries and property damage which an innocent person may suffer as a proximate result of the defendant’s inability to so control or operate his motor vehicle.
This is true even if you find the defendant driver had no warning of any such impending seizure or health failure.