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Jonathan Acklen Responds To Paul Carpenter

- Below is a well written response to a Paul Carpenter opinion piece where he, once again, attacks our system of justice, the jury system,  and lawyers who represent the disadvantaged.- Paul Carpenter's tort reform proposals are dangerous. He states that his main concern is the impact "such lawyers" (referring to attorneys who represent injured victims) have on average people. So his response to this concern is to publish what he refers to as common-sense proposals. These proposals are an attack on the rights of children, senior citizens, and low and non-wage earners. Mr. Carpenter's proposal would severely limit if not completely take away any right to compensation for injury held by a senior citizen with either a short or nonexistent work life expectancy. Mr. Carpenter has in effect placed a $250,000 on cap on how much a retired mother or grandmother's life is worth. Think about it, he states that compensatory awards are alright but he claims limits are needed for awards that go "beyond compensation for actual harm." What does that mean? It means that even if a jury believes that a maimed child who will live the rest of their life in physical and/or emotional pain is entitled to compensation for their suffering, they do not have actual harm above his arbitrary limit. It also means that a retired grandmother who becomes quadriplegic due to medical negligence and now must live the remainder of her life trapped in a body she can no longer use to play with her grandchildren suffers no "actual" harm beyond $250,000. Reader, if you are retired and you suffer a life-altering injury caused by someone else's conduct, should you not have the right to prove your harm to a jury of your peers? The people who would suffer the most if a cap system were in place are those people that some of us believe we have a duty to protect, the vulnerable people: children, senior citizens, minimum wage earners, and non-wage earners such as stay-at-home parents. In addition, caps on noneconomic damages are also unconstitutional. The founding fathers intended for civil disputes to be decided by jurors. Caps on non-economic damages, pain and suffering, remove a crucial part of civil justice from the system. In a civil suit, the attorneys for the injured victim most often work on a contingency basis. They do not get paid unless they are able to help their client obtain a recovery. I would call that a "cap" on fees. Attorneys who defend wrongdoers, however, are paid regardless of the outcome and regardless of how long it takes to reach that outcome. In other words, there may be a situation where a fair resolution is possible but rebuffed by the attorney for the wrongdoer, forcing everyone to spend more money and time when all could have been resolved fairly very early on. Further, the attorneys for the injured victim typically take on all costs of litigation until a recovery is obtained. That means that if an attorney has to spend tens or hundreds of thousands or even millions of dollars to pursue a claim for a victim, they risk losing all this in addition to getting no fee for the time spend and work done on the case. This system is the best check on "frivolous" lawsuits there is. Not many people are going to risk hundreds of thousands of dollars to pursue a case on a whim. The conservative think tank, American Enterprise Institute, conducted a study in 2005, "Two Cheers for Contingent Fees," concluding that such a fee system deters bogus lawsuits. It found that lawyers paid an hourly rate (like those who represent the precious insurance companies defending the perpetrators of harm) are likely to prolong settling cases, as opposed to attorneys charging on a contingent basis. In 1986, James Gattuso, who at the time was with the Heritage Foundation, wrote an article for the Wall Street Journal entitled "Don't Rush to Condemn Contingency Fees." He stated the truth about these fees - that they ensure that injured people who would otherwise be unable to afford legal representation have equal access to the legal system and "rather than encourage baseless lawsuits, the contingent fee actually helps screen them out of the system." Finally, limits on fees would amount to price controls, a clear violation of free market principals. Who else's income should we limit Mr. Carpenter? It's easy to attack protectors of victims when you use derogatory terms like "ambulance chaser". Mr. Carpenter uses terms like "award" and "jackpot" and "fee grab" to cloud what truly occurs. Words like justice, compensation, and earning an income might be more accurate but clearly less dramatic. No victim would prefer to suffer through a traumatic loss of a loved one or a life-changing injury to get an "award" but we can't rewind the clock and stop the perpetrator from committing their acts of harm. A jury decides these amounts, not the slot machines in Bethlehem. I don't understand why Mr. Carpenter thinks he is able to determine how much an attorney protecting a victim should earn when that amount is solely based on the quality of help that attorney provides for the victim. Few other professionals are paid, or would like to be paid, based solely on results. I know attorneys have offered to discuss these issues with Mr. Carpenter because if he had an accurate understanding of how the civil justice system really works he may change some of his opinions. Instead, he would rather sit ignorantly by and spout off comments that put the rights of victims, especially children, senior citizens, and stay-at-home parents, in peril. Jonathan B. Acklen

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