What do you think of Workers' Compensation legislation? In a sense you have the same potential problems in those schemes as well--a review board and MDs who may not have the claimant's best interests in mind.

Greg... You are correct that the Workers' Compensation system has a tendency to favor the employer despite the stated purpose of aiding the employee.

Think about the doctors who will spend years dealing with the same insurance companies (who have great deal of control over who gets to treat). Each employee is a one-shot deal.

Then, think about the pressure created by the system to hold costs down and to get workers back on the job. These are pressures that would mean nothing to a jury with, presumably, no expertise in the system.

Net result from my standpoint is less justice for each individual worker

In some pro-labor states such as West Virginia, Workers' Compensation schemes historically favored the employee, although per claim cost was kept down by the scheme. That is almost certainly less true today, however, with the strength of unions weakened.

But what about injury caps in regular court? Are you against those? Much of the appeal of having a specialized court is certainly due to the volume of claims. And a primary reason for the high volume of claims is the chance for high awards for pain and suffering and punitive damages.

On the one hand, victims should be made whole--a principle of tort law that is, I think, noncontroversial. On the other hand, how do you measure what that means? And there is certainly a cost on society if there are too many law suits. I live in Mississippi, and my premiums for all types of insurance are extremely high--higher, in fact, than when I lived in metro Washington, D.C. just 2 years ago.

Greg...I disagree with your statement that "a primary reason for the high volume of claims is the chance for high awards for pain and suffering and punitive damages." I have been practicing for over 35 years and believe only a handful of cases have been driven by either of these factors.

For starters, punitive damages are only rarely permitted to be considered by juries. Judges only allow the issue in a case where there is a reasonable basis to believe that the wrongdoer's conduct has been reckless or intentional or in total disregard for the safety of others. Then, the amount of the punitive damages awarded must bear some relationship to the magnitude of the wrong, the assets of the defendant and the compensatory damages. Trial judges and appellate courts regularly reduce and even disallow punitive damage awards when they are inappropriate. In Florida, it sometimes seems that unless a defendant was drunk or used a gun there is no chance to seek punitive damages.

The idea of frequent inappropriately high awards for pain and suffering is an urban myth. Once again, trial judges and appellate courts regularly reduce the few such verdicts that occur.

I suggest that a "primary reason" that there are so many lawsuits would more likely be the hope of the insurance company that a particular jury could be persuaded to permit a true wrongdoer to skate free by determining either A) there is no legal liability or B) there is no connection to any damages. As long as the system permits this result even in situations where a judge would clearly see that some liability and damages would be appropriate, insurance companies will continue to force matters into litigation rather than put their top dollar on a claim in negotiations.

I am not advocating a particular change in this area, just trying to show that lawsuits are the result of plaintiffs who think they can do better and defendants who think they can totally defeat or minimize a claim before a jury.

Caps on damages are outrageously unjust. They are, by definition, imposed on only the most seriously injured victims of proven misconduct. How can it ever be just to permit everyone with minimal or moderate damages to receive a full damage award but to deny full compensation to the most severely injured? Balancing the books on the backs of quadriplegics and the brain-injured is beyond despicable.

The real motivation for caps on damages is that they would permit more insurance companies to force more cases into litigation without fear of ever having to pay the full price for the harm caused. In other words, once the downside is capped, the pre-suit negotiations take a totally different path.

Bob--Interesting comments; thanks for the detailed response.

Let me approach the matter from a different angle. But first, let me say, anecdotally, that I worked for a plaintiff's law firm for two summers before and during law school, and they were some of the best lawyers I have ever come across. Ever. And I do believe that personal injury lawyers perform a vitally important task in our legal system. Meaningful access to the civil courts should not be contingent solely upon pro bono representation or lawyers billing at hundreds of dollars per hour. And wrongs are wrongs, no doubt about it.

But even in calculating non-punitive damages, surely you must agree that the matter is more alchemy than science. The theory behind damages is that the plaintiff is made whole, but with a large cut of awards going to counsel, plus the fact that damages are not just a matter of clear-cut addition, this is easier said than done. Quantifying future wage losses, choosing an assumed inflation rate, placing a dollar figure on loss of enjoyment of life, for example, are hard things to do with any degree of accuracy. I don't have 35 years of practice experience, but I have seen it done, and it is a nebulous calculus filled with estimation.

Of course, perhaps the best answer is that we leave such decisions up to a jury of our peers, if it gets to that, or our lawyers, if we settle. And yet we cannot ignore that there is a social cost imposed by lawsuits, in many indirect but important ways.

A little comparative law is perhaps in order. In Europe, there is far less litigation. Most legal systems there, with the exception of those in the UK, are civil code systems. People there still get hurt on the job, or hit by cars, or injured by doctors in private practice. And yet there are fewer lawsuits. And there are not moronic warnings everywhere, like "Caution: Hot!" on a coffee cup, or "Danger: Hazardous terrain" at the edge of an obviously high seaside cliff, both of which you do see in the U.S.

So while the big cases with the huge awards are the ones that get the attention, it is the volume of less large (but by no means small) cases that add costs. And by litigation, I do not mean just cases that go to trial. I mean any lawsuit that is filed. Most civil cases that present a colorable claim are settled.

And who bears the costs? Ultimately, you and I do, as citizens. Insurance (where there is coverage) foots the bill, and raises rates. It is, after all a business. Again, here in Mississippi where I live, there is a strong tradition of plaintiff's litigation. Insurance premiums are high across the board, and higher even than insurance in huge metropolitan areas where it would be more warranted by the risks involved.

So while no one wants a seriously injured person to just be left on his or her own, it is naive to pretend that there is no social cost involved, because there most certainly is. So debunking any "urban myth" of overly high awards is, in a very large sense, beside the point.

I very much appreciate the time and effort you have expended in responding to my questions. It is interesting and useful (especially when you are a law professor like me) to get thoughtful insight from others in the practice of law. I do not agree with all of your views, but I always appreciate an intelligent dialogue. In my opinion we would be better off if we had more of it, instead of polarized posturing.

Best regards.