JIB in the News

[alfred russel]

It's bullshit.  It's unjust.

Let's say you are an ordinary Joe who is defrauded out your life savings.  The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank.  Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea.  BigBadBank is still alive and solvent however.  A jury finds that between the three BigBadBank is 40% at fault. 

If liability is several only,  that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect).  You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.

Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?

I think a case where there is established criminal collusion is a bit different than the case here. 

[DGuller]

It's bullshit.  It's unjust.

Anything that could possibly harm a business is unjust in your book.

Raz, have you ever tried the strategy called "pick your battles"?  There is a Laffer curve effect in play when it comes to stalking:  cutting the number of put-downs in half may more than double the  /put-down ratio.

[grumbler]

Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.

So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault.  Either seems odd, but when you go to a jury, you takes your chances.

Okay, now *that* doesn't make any freaking sense. 

Why, only defendants over 50% of apportioned liability become severally liable for all the damage.  Makes sense to me.  Especially if I am representing defendants who are 50% or less 

How many defendants could possibly each be over 50% liable? 

[DGuller]

Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.

So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault.  Either seems odd, but when you go to a jury, you takes your chances.

Okay, now *that* doesn't make any freaking sense. 

Why, only defendants over 50% of apportioned liability become severally liable for all the damage.  Makes sense to me.  Especially if I am representing defendants who are 50% or less 

How many defendants could possibly each be over 50% liable? 

Depends on the total amount of liability.

[Razgovory]

It's bullshit.  It's unjust.

Anything that could possibly harm a business is unjust in your book.

Raz, have you ever tried the strategy called "pick your battles"?  There is a Laffer curve effect in play when it comes to stalking:  cutting the number of put-downs in half may more than double the  /put-down ratio.

Would you like me to stalk you?

[DGuller]

It's bullshit.  It's unjust.

Anything that could possibly harm a business is unjust in your book.

Raz, have you ever tried the strategy called "pick your battles"?  There is a Laffer curve effect in play when it comes to stalking:  cutting the number of put-downs in half may more than double the  /put-down ratio.

Would you like me to stalk you?

Nah, stick to Yi, please.

[crazy canuck]

Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.

So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault.  Either seems odd, but when you go to a jury, you takes your chances.

Okay, now *that* doesn't make any freaking sense. 

Why, only defendants over 50% of apportioned liability become severally liable for all the damage.  Makes sense to me.  Especially if I am representing defendants who are 50% or less 

How many defendants could possibly each be over 50% liable? 

Any number actually.   

[grumbler]

You haven't answered the question though.  If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?

That is the same situation, justice-wise, as if BBB were not found guilty of anything.  How can it be fair that some innocent person gets ripped off by Bernie Madoff, and no one makes it good?

[grumbler]

It's bullshit.  It's unjust.

Let's say you are an ordinary Joe who is defrauded out your life savings.  The defendants at fault are Bernie Madoff, a vampiric octopus named Goldie, and BigBadBank.  Bernie declares bankruptcy, and Goldie disappears to the bottom of the sea.  BigBadBank is still alive and solvent however.  A jury finds that between the three BigBadBank is 40% at fault. 

If liability is several only,  that means you only get 40% of your life savings back, from BigBadBank and you bear the burden of going after the others for their share (if there is anything to collect).  You spend your old age begging on the street for loose change.
If liability is joint and several, then you get your life savings back, avoid a life of destitution, and it is up to BigBadBank to go after the deadbeats for their share.

Between you, who is completely innocent, and BigBadBank, who was found to have committed fraud, why should you bear the entirety of any unrecoverable loss?

I think a case where there is established criminal collusion is a bit different than the case here.

Exactly.  BBB may have done nothing more than been negligent in updating the address on the victim's account reports (which, while it allowed the crime to some extent, was not intended to do so).

[crazy canuck]

You haven't answered the question though.  If you change the rule to several liability, how is that just for the innocent person who only gets 40% of their money back, simply because Bad Guy #1 had two accomplices with no dinero?

That is the same situation, justice-wise, as if BBB were not found guilty of anything.  How can it be fair that some innocent person gets ripped off by Bernie Madoff, and no one makes it good?

No, Plaintiffs always run the risk that they may end up with a dry judgment.  The policy issue is why should they face that risk when a tortfeasor can pay.

[grumbler]

Missouri is a UCATA state, and tort damages are several only unless the defendant is more than 50% at fault.

So either the jury found a huge amount of damages, and the $20 million is a fraction of that, or JiB was found to be more than 51% at fault.  Either seems odd, but when you go to a jury, you takes your chances.

Okay, now *that* doesn't make any freaking sense. 

Why, only defendants over 50% of apportioned liability become severally liable for all the damage.  Makes sense to me.  Especially if I am representing defendants who are 50% or less 

How many defendants could possibly each be over 50% liable? 

Depends on the total amount of liability.

Really?  I only really know about liability from Law of the Sea stuff back in my Navy days, but in LotS, liability totals 100%.  In non-LotS stuff, if you have liabilities totaling, say, 200%, does the plaintiff get 200% of the award?  If not, who gets the award in excess of 100%?

[Razgovory]

Nah, stick to Yi, please.

Very wise choice, Dmitriy

[grumbler]

No, Plaintiffs always run the risk that they may end up with a dry judgment.  The policy issue is why should they face that risk when a tortfeasor can pay.

The policy issue is why make a minor transgressor pay the entire forfeit when the plaintiff has ended up with a dry judgement against the other, major defendants?  This policy encourages widening suits and increasing costs to everyone just in the hope that a lawyer can convince a jury that the Big Bad Business is even 0.0001% at fault, so the lawyer can get his full 40%-of-settlement payment.

That's bad policy.  I don't have a problem making all defendants over 50% liable jointly liable.  In those cases, they were major players in the problem.

[Admiral Yi]

They are paying for their wrong and they have the pockets to go after the other defendants if they think those other defendents should pay up.

In terms of risk allocation it makes a lot more sense than penalizing the innocent plaintiff.  People are a lot less likely to commit a tortious act if they think there is a risk they might pay 100% of the damages.

They are paying for their wrong and the wrongs of other parties.  That was the starting point of the discussion.

In both Joan's hypothetical, and the JiB case (which turned out to be in a NIMBYCINCPAC state so a little moot) the other defendents had no assets.  Going after them is not an option for the party on the hook.  I can *sort* of see the logic of holding BB Bank totally liable and allowing them to go after a Bernie Madoff who is sitting on a stash in Ecuador, but the law doesn't appear to make that distinction.  I can similarly see the logic behind applying the law to co-conspirators to fraud, but that doesn't describe either the JiB hypothetical or the Highway Department/drunk driver hypothetical.

[crazy canuck]

They are paying for their wrong and they have the pockets to go after the other defendants if they think those other defendents should pay up.

In terms of risk allocation it makes a lot more sense than penalizing the innocent plaintiff.  People are a lot less likely to commit a tortious act if they think there is a risk they might pay 100% of the damages.

They are paying for their wrong and the wrongs of other parties.  That was the starting point of the discussion.

Not quite.  All the defendants can look to eachother to work out (through third party proceedings etc) what each of their own share of the lability should be.  The policy decision is to not put that burden on the Plaintiff.

The issue is that here the other defendants wont be able to contribute because they are broke.  But, as pointed out earlier, that creates more deterrent from people acting negligently if they think there is a chance they may be responsible for the whole pot.