How the Americans got it so wrong, for all the rights reasons.

[Blue Lightning]

This article:
http://www.smh.com.au/technology/tec...827-24vmv.html
has prompted me to post this.

Must have been the habaneros in the curry, washed down by the red ... Some very personal perspectives follow.

Even a casual observer of legal systems would note that there are substantial differences between the United States and much of the rest of the common law world.

The revolutionary Americans started, on almost every front, with the noblest of ideals. Born out of their rebellion against the King of England and the entrenched system of nobility in England they rebelled against, their legal system entails:

1. “Due process”, which they interpret to mean that in almost every case, there is to be a jury. So, rather than the system of “Law Lords” who (with exceptions such as criminal cases) alone constituted the King's Courts in England, everyone would be constitutionally entitled to a trial before his/her peers in a first instance case, even civil cases. Power to “we, the people”, rather than the elites.

2. Election of Judicial Officers, again to prevent the establishment of a “ruling elite” of Judges such as there was in England.

3. Rules which facilitate an almost absolute entitlement for every citizen to have their day in Court. Access to justice. Another very noble principle. Central among the rules were those which “freed up” the costs practices of the legal profession. So, in England and much of the common law world, contingency charging in which lawyers were free to charge whatever they wanted in the event of a victory was unlawful. In the United States, this was permissible, so that lawyers would be encouraged to take on any citizen's case.

Now, they have the highest ratio of lawyers to citizens in the world: one lawyer for about every 265 Americans. That compares with one lawyer for about every 350 Australians and one lawyer for about every 400 Brittons.

The US has, bar none, the world's most expensive, yet one of the world's least predictable legal systems. How has this come about?

The noble idea that everyone is entitled in almost all cases to a trial before a jury at first instance means that, especially in complex civil cases, trials take longer than in most of the rest of the world. Elsewhere, judge-alone trials in most civil cases are the norm. In essence, in every case in the US, no matter how technically difficult or complex, each trial attorney must produce a “Little Golden Book” on how to understand the areas of science/economics/engineering/medicine/whatever that is in issue. And make it entertaining enough, or hope that the conscripted jury has a sufficient sense of duty, interest and ability, to diligently follow it all. Or … cheat, by crafting seductive sounding ways apart from proper understanding. In many other civilised legal systems, there are specialist Judges for commercial disputes, specialist Judges for environmental disputes, specialist Judges for intellectual property cases (More of Apple v Samsung in a moment), who bring a quite a level of knowledge and experience to the cases they hear. In the result, by comparison to most civilised legal systems, at first instance, the American system is far less predictable.

This problem is not solved at appellate level. Election of Judicial officers has everywhere led to politicisation of the Judiciary. At appellate level, because the Judiciary is overtly political, it means that when one “side” loses an argument in any case with political aspects, they are less likely to accept the outcome, and more likely to wait for a shift in Judicial “numbers”. See the never ending struggle to revisit Roe v Wade. At lower levels in the system, it means that people with political connections who may not be the best technical lawyers, become the Judges, also leading to less predictability. Everywhere, it erodes the separation of powers. It erodes the appearance and actuality of the independence and impartiality of the Judiciary.

Next, the lawyers' costs practices. The US has succeeded in creating the world's most accessible legal system. But at a cost: The flourishing of the “ambulance chasing” industry. A poorly skilled lawyer can be a great ambulance chaser, encouraging poor people to litigate their cases when it might be in the client's best interests not to do so. In other parts of the world, such people, at the least, are less likely to survive economically. But where you can run 20 cases and lose them all, and then run one and get 80% of the pie, the system can afford a lot of mediocrity.

American juries know this is how the system works. So when they find a worthy plaintiff, who really deserves decent compensation, the temptation is there to increase the size of the award, so that the worthy plaintiff will actually get something.

Finally, the insurance companies. Given the lottery that the system is and the risk of very high awards of damages, the premiums are higher than anywhere else in the world.

Insurance companies, historically, do not appear to me to have made their money out of treating claims fairly. They have held the money and invested it. This has happened everywhere. In a system of higher unpredictability, such behaviour has been even more economically rewarding.

Now, to Apple v Samsung. The poor jury.

… The nine-person jury on Friday ruled in favour of Apple on the majority of its claims against Samsung and awarded more than $1 billion in damages.

The quick decision came as a surprise as the jury – which included a retired electrical engineer, a homemaker, a bicycle shop manager, a construction worker and a US Navy veteran – needed to digest four weeks of court evidence. The decision came just in time for the weekend …

Yet:

Deliberations in the case were far more challenging than most. The jury was confronted with hundreds of questions on a 20-page verdict form that was more complicated than a US tax return. They had in the jury room more than two dozen electronic devices at issue, 12 patents to decipher and 109 pages of instructions from the judge on rendering a verdict.
Australian patent lawyer Mark Summerfield, of Watermark, said the decision came "ludicrously quick" …

Now to some more “quirks” of the US Jury system:

Jury foreman Velvin Hogan has been particularly outspoken and said he wanted to give Samsung more than "just a slap on the wrist".
Lawyer community and news site Groklaw has rounded on this and other comments, as the jury instructions said damages are meant to compensate for loss incurred rather than a means of punishment.
Hogan reportedly told a court representative that the jurors had decided to reach a decision without needing to read the instructions.
"Comments by the jurors could be taken as evidence that they were not properly instructed, or that they failed to heed instructions, which provides additional grounds for appeal," Summerfield said.

Yup.

Patent system "out of control"
Before the verdict an intellectual property professor at the University of California Hastings Law School, Robin Feldman, described the case as unmanageable for a jury.
"There are more than 100 pages of jury instructions," Feldman said. "I don't give that much reading to my law students. They can't possible digest it.
"The trial is evidence of a patent system that is out of control. No matter what happens in this trial, I think people will need to step back and ask whether we've gone too far in the intellectual property system."

Yup.

Must be time for cheese ...

[Bruce Long]

Noooooooo! Don't eat the cheese too!!!!

Kidding. Very interesting. Very informative and yet somehow it still does not make much sense...

Given that the legal profession being as commercialised as everything else in a hyper-capitalistic context has something to do with it, I can't see it getting better any time soon...

Reading your post, I kept seeing visions of Alvin Valkenheizer as top US judge (- or president)

(I have always wondered at the squeekie toys. Perhaps it signifies the foundation of things to come...)

[the_gelf]

I posted a comment on one of these news stories, decrying a three day decision on a billion dollars as an absolute joke. And I'll do it again I guess :P

I also had the hypothesis that the company being American swayed more heavily in any juror's mind thatn any evidence whatsoever