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Attorney Van O'Steen

We're Only Human: Legal System's Flaws Make Justice Elusive

Van O'Steen

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An interesting article appeared in a past edition of The National Law Journal, a legal newspaper.  You probably missed it.

The article noted the frustration of many injury defense lawyers over their inability to obtain recognition for their trial success.  Injury defense lawyers are those who represent insurance companies, large corporations and governmental agencies against the claims of those injured in accidents.

The Journal article noted that injured parties generally win in court about half the time; those who are sued win the other half.

The defense lawyers’ frustration occurs because their victories rarely are considered newsworthy.  If an injured party wins a significant jury verdict, it often makes headlines.  If a defendant wins big (for example, by a verdict of zero in a case with serious injuries or death), the result normally goes unreported.  A claimant receiving a million-dollar medical malpractice verdict is news.  A claimant losing a million-dollar case is not.  The success of medical malpractice defense lawyers goes unnoticed by the public.

Society has no interest in recognizing the achievements of particular lawyers.  We do, however, have a vital interest in understanding the workings of our legal system.

Blameless accident victims who are injured still run a substantial risk of losing in court.  This is explained, in large part, by the heavy burden imposed on the one who files a lawsuit against another.  In every case, the judge instructs the jury that the plaintiff (the injured party) must prove by “a preponderance of the evidence” that the defendant is responsible for his or her injuries.  The defendant need prove nothing.  The burden of proof rests with the plaintiff.  In close cases, the injured party often loses.  This is especially true in personal injury and medical malpractice cases.

Injustices can occur on both sides.  Precision and perfection in decision-making are not possible in the management of human affairs.  We must necessarily settle for less than perfection.

Our products are not entirely safe, our medical treatment sometimes is flawed, our individual conduct often disappoints us, and our legal system does not always dispense justice.  None of this should surprise us.  These are all products of human beings – not nature.

Our society might be well served by making changes in our legal system – perhaps radical changes.  No change, however, is likely to be more fair than the one we have now.  Increased efficiency is possible; substantially greater fairness is not.

Under any imaginable legal system, some undeserving people will win and some deserving people will lose.  If you can cure this flaw in the system, the Nobel Prize is yours.