The law sometimes imposes strict liability -- that is, no fault showing is required -- for injuries resulting from inherently highly dangerous products. Explosives are a typical example. It is not much of a stretch to argue that guns fall in that category, especially handguns or semiauitomatic weapons, which, unlike shotguns and hunting or target rifles, are specifically designed to kill human beings and are made for that purpose. Anyway, it's hard to say that a kid killed by a gangbanger's Tech 9 ina driveby failed to follow commonsense precautions.
but I am also well
> aware of the right-wing
> canard of "legal excesses" - the McDonald coffee
> case is their favorite
> example of that.
Actually, the McD's lawsuit will not bear scrutiny as an example of legal excess. The coffee was way too hot; the plaintiff suffered 2d and 3d degree burns and needed to be hospitalized.
What the followers of the "legal
> excesses" line seem
> to conveniently ignore is that the ability to bring
> a law suit (i.e.
> having a standing) is NOT tantamount to conviction.
Standing (not "a" standing) is normally of having suffered an injury at the hands of the defendant that the courts can ins ome way redress. Of course it can be costly to have to defend a lawsuit. That's what puts bread on my table! Oh, and if you lose a civil lawsuit you are found liable for damages, not convicted. Criminal defendants are convicted -- mostly they are. Civil _tort_ defendants win (are not found liable) about half the time, not counting settlements. (Most cases are settled.) Btw _employment discrimination_ defendants win about 80% of the time. In my judgment, having handled probably 60 or 70 ED cases, that is about right.
>
>
> If the case was so frivolous, as the right wingers
> want us to believe,
> the defendant had at least two chances for a
> successful defense - by
> having the judge throw the case out of court for the
> lack of merits (not
> to mention the fact that filing frivolous suits can
> be penalized under
> the law) or by convincing the jury that the
> plaintiff's claim is
> unreasonable.
More than that: (1) the case may be dismissed on the pleadings, without any assessment of the evidence, for various reasons including failure to state a claim; (2) it may be terminated by summary judgment, without trial, if the evidence the plaintiff has gathered during discovery would not suffice to win even if it were credited by the jury; (4) it may be terminated (this is less common) if the court decides to exclude crucial evidence, e.g., of damages, before trial. And of course the palintiff may not make his showing by a preponderance, and one can always move for reconsideration,a new trial, judgment not withstanding the verdict, or, failing all that, appeal.
If things get beyond a motion to dismiss, they get expensive. We defense lawyers don't work on contingency. Now, I wouldn't weep over the finncial situation of Colt or Remington; they can afford us. You couldn't, but they can.
If that did not happen (as in the
> McDonald's case) it
> means that on at least two instances two sets of
> competent people
> familiar with the facts of the case decided that the
> plaintiff's claim
> did have merits. The decision of these people (the
> judge and the jury)
> carries more weight than all the media hype and
> Monday morning
> quarterbacking by right wing pundits.
That's right. Look at that heap of process I piled up.
A verdict -- especially a big one -- that survives
all that is likely to be reasonable. Maybe. There are
counties in Southern Illinois (for example), where the
defendant might as well go in with his checkbook open.
But the odds are in general a lot more stacked in our
favor ("we" being the bad guy defense firms) than
against us.
>
> In that context, a move to deny a standing in
> certain cases is a really
> low blow - tantamount to denying justice to certain
> types of plaintiffs.
Well, it's not denial of standing, technically speaking. It may be denial of the court's jurisdiction or a grant of immunity to suit.
>
> And finally, one question to Jordan - if the gun
> laws are so efficient
> in the United States, how come that the United
> States has THE highest
> homicide rate among the developed countries? If the
> availability of
> lethal weapons is not the culprit, then what is?
Stop being reasonable, W, everyone knwos that guns don'r kill people, people kill people. The French beat each other to death with baguettes. Th Japanese use sushi knives.
jks
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