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The published literature on making automobiles crashworthy and safe is extensive. The proceedings of The Stapp Car Crash Conferences, the research papers of the Cornell Crash Studies, the U.C.L.A, Automobile Trauma Research and the University of Michigan Collision Studies, safety studies financed by The United States through its Department of Transportation to name only a few-established beyond doubt that present engineering and technology can cut the death rate and the injury rate in half, if we only use the available knowledge. This may require more than driver education and polite persuasion. If it is desirable, for the public welfare, for Congress to enact minimum motor vehicle safety standards, then it should be equally desirable to require the motoring public to use the safety devices built in to the automobile in compliance with those standards.
ATL favors, and urges, legislation requiring every driver and passenger riding on a public highway to use the safety lap belts and shoulder belts with which the car is equipped. We see no difference in principle between compelling motorcyclists to use approved safety helmets and compelling motorists to use an approved safety restraint.
This is not to be construed as a commendation of the shoulder belts presently installed in most American automobiles, which are generally awkward, inconvenient, and uncomfortable. These seem to be designed simply to comply with the Federal regulation rather than for ease and comfort of application. We would hope, however, that if the automobile buyer and driver had to use the shoulder harness furnished with the car, then the automobile manufacturers would find it competitively desirable to design and build in better upper torso restraint systems.
ATL also favors extending the Motor Vehicle Safety Act in part of the used car market. It may well be impractical to rebuild braking systems and windshields, but it seems practical and feasible to require the used car dealer to install seat belts, shoulder belts and headrests in the aftermarket.
There is more reason to restrain the occupant from striking the old style unpadded dashboard and old style shattering, lacerating windshield than the safer structures of the late model new cars.
Safe driving depends in substantial part on the health, the physical capacity, and the emotional maturity of the driver.
To state the obvious, we know the death rate would be greatly reduced if we could get the chronic alcoholic to ride in the passenger's seat instead of the driver's seat.
ATL endorses without question the strict licensing law proposed by The National Bureau of Highway Safety.
A major cost element in the overall insurance premium is related to property damage and property loss. As noted earlier, more dollars of both premium and payout are spent for the automobile itself than are spent for the people in it. Much of it is waste. It is ridiculous for the automobile industry to build bumpers so flimsy they crumple at a five mile per hour impact.
If the federal government is unwilling to set minimum energy-absorbing standards for bumpers, it might at least publish repairability ratings early in the model year so that the consumer would know that certain models would carry a burden of heavy repair costs on minor bumps and scrapes.
The consumer now has little information on which to base his choice.
FIRST PARTY COVERAGE As a general proposition ATL opposes compulsory first party coverage which a driver would have to purchase from a private insurance company for self protection regardless of whether he wanted or needed that protection.
We have seen no convincing evidence that compulsory first party coverage is necessary.
If there is a social need to compensate all automobile accident casualties, then there must be the same social need to compensate the far greater number of casualties from other kinds of accidents. A leg broken while skiing imposes no lesser and no greater hardship than a leg broken while driving. A back sprained falling down the basement stairs requires the same medical treatment and imposes the same cost as a back sprained in an intersection car crash.
The solution to the social problem of accidential injury adopted by all other nations is a national health program. ATL would support a national health insurance program which would guarantee adequate medical treatment of all illnesses and all injuries for all the population.
ATL would not oppose a state or federal Accident Rehabilitation Fund which would pay the full medical expense of all accidental injuries, excluding the treatment of disease and non-accidental disabilities, if a full national health program is not deemed feasible at this time.
ATL does oppose vigorously any scheme which singles out a limited class of accident victims-the motorists-and compels each motorist to be a captive purchaser of a limited benefit health and accident policy for the private profit of a casualty insurance company.
The present court and tort systems in the various states have their imperfections. Improvements can be made, and should be made. Individual states have already put into effect some reforms which have worked very well. If all of the states adopted all of the tried and proven innovations discussed in the following sections, then the tort system should perform well its function of giving individual justice to each citizen.
Congestion in the courts is a local problem which is at its worst in major metropolitan areas where many are affected. It is by no means a problem related solely to automobile tort litigation. The same courts of general jurisdiction which handle motor vehicle injury cases also handle the general run of criminal cases, which have expanded much more rapidly than tort litigation has and consume far more judicial man-hours.
We do not propose changing the criminal law to make all felony charges subject to a $5,000 deduction, although this would make as much sense as the $5,000 deductible civil verdict proposed in the Keeton-O'Connell Plan. A better solution would be to establish a sufficient number of judgeships to handle the work load imposed by the population explosion and the urban crisis.
Florida has substantially eliminated its congestion and delay problems by providing one county court judge of general jurisdiction for each 50,000 inhabitants, or major fraction thereof, residing in the court's territorial jurisdiction, as determined by the most recent state or federal census. ATL endorses the Florida plan.
In jurisdictions where there is presently a serious delay and the court system is too understaffed to bring the docket up to date, then the trial bar has an obligation to contribute some of its manpower and some of the expense money needed to get the docket moving.
An obvious way to ease the burden of the courts is for the bar to promote a system for the arbitration of the smaller cases.
If the parties agree, or a court at a pre-trial decides, that a reasonable verdict should not exceed $2,500, then the case would be referred to an arbitrator or panel of arbitrators.
Experience has shown that trial time and expenses can be materially reduced by such devices as substituting medical reports for doctors' live testimony and by stipulating many of the facts.
If the bar itself cannot make a voluntary arbitration system work, then ATL would endorse a mandatory system along the lines of the Philadelphia plan, which preserves the right of jury trial by way of an appeal, with trial de novo on both fact and law.
In addition to arbitration in the smaller cases, ATL believes that there are a significant number of cases which could be tried non-jury. The Los Angeles plan uses panels of judges who have the confidence of both plaintiffs and defendants. ATL would encourage other jurisdictions to experiment with a similar plan, on a strictly voluntary basis.
The burden of jury service on the community would be reduced if juries of less than 12 in number were utilized, and they were permitted to return a nonunanimous verdict. The American Bar Association's majority report has recommended that 9 out of 12 is a sufficient number for a civil verdict.
ATL agrees, but adds that 6 out of 8 is the same percentage and should be able to return a verdict equally fair. If the maximum term for jury service were set at two weeks, it would increase the willingness of jurors to serve, would reduce the burden, and should lead to a better cross section of the community on the jury panels.
The notion that the "King can do no wrong" should have died on Bunker Hill. It is regrettable that most American states have adopted the rule that the state can do no wrong, and that non-profit corporations can do no wrong.
The innocent victim's injuries and suffering are just the same when he is hit by a state highway truck as when he is hit by a certificated motor carrier. Negligent driving should impose liability on the master regardless of his official or favored status.
ATL insists that all the immunities have long outlived their purpose and usefulness, and should be removed.
GUEST ACT The Guest Act is a particularly unjust and unreasonable form of immunity which persists in about half of the states.
This is the only area of the law where a person acting in a proper, legal, socially acceptable way is treated as a total outlaw. There is nothing wrong in being a guest. There is a great deal wrong in carelessly crippling a guest.
ATL urges the total abolition of all The Guest Statutes, including the special Guest Statutes which punish passengers in aircraft and motorboats. No insurance company writing public liability coverage should be permitted to exclude any guest from the coverage of the policy.
COMPARATIVE NEGLIGENCE One area in which the trial bar, both plaintiffs and defense, and the academic world are in complete accord is that the common doctrine of contributory negligence is too harsh and unjust.
If the victim's innocence is impaired by 1%, his recovery is impaired by 100%. It's no answer to say that juries round off the sharp edges of the law. We should not impose on a conscientious jury the difficult task of making a bad law workable.
Even if a jury were willing to return a reduced verdict on a comparative negligence basis, despite their oath to follow the law as it is, the courts may prevent any amelioration of the contributory negligence by a directed verdict or by reversal and adverse judgment, notwithstanding the verdict. In addition we cannot expect lawyer-arbitrators and judges in jury-waived cases to apply good jury sense instead of the hard common law.
The adoption of the more reasonable comparative negligence doctrine will promote more and earlier settlements; will increase the use of arbitration and jury-waived trials; and, more importantly, will wash out a mistake the common law made long ago.
There is considerable divergence among the advocates of comparative negligence as to how far it should go. In the "pure" form, as in the Federal Employers Liability Act, the Jones Act, and in Mississippi, the injured person recovers proportionately to the other party's fault and his own freedom from fault. In theory, if not in practice, the plaintiff would recover if he were 95% to blame and the defendant was only 5% at fault.
Under the Greater Fault plans, the plaintiff recovers only if his fault is less than defendant's. Plaintiff loses if the fault is 50-50, but wins if his fault is only 49%.
The membership of ATL has not come to a firm conclusion whether it favors pure or partial comparative negligence. On one subsidiary point, however, there is complete agreement. ATL believes that the jury should be instructed as to what the law is and should return its general verdict applying that law.
ATL opposes the secret cross examination of the jury in which it returns a questionnaire instead of a verdict.
Under the Maine plan and the revised Arkansas plan, the jury is instructed to reduce the damages in proportion to plaintiff's negligence and return the reduced amount in its verdict, provided the defendant's negligence is greater than plaintiff's.
Under the Wisconsin plan, the jury answers questions as to the percentage of fault, and another question as to full damages.
If they adopt the easy conclusion that negligence is 50-50, the plaintiff loses when the jury enters judgment, but the jury does not know that this will happen.
If the jury knew how finely the legal scales are balanced, they might well deliberate long enough to determine whether one party's negligence was really 52%.
ATL endorses the Maine and Arkansas system of general verdicts and opposes the Wisconsin system of special interrogatory verdict; but does not oppose the partial form of comparative negligence (defendant's negligence must be greater) that obtain in all three of those states.
THE COLLATERAL SOURCE RULE Over the course of many decades American courts have developed the rule that the amount of recovery to be awarded the victim of another's wrong is not to be diminished by the benefits the victim may have received from some source other than the wrongdoer. The rule is usually justified on the basis that the contribution made to the victim was intended for the benefit of the victim and not for the benefit of the one who inflicted the injury. If a generous employer continues the salary of his bed-ridden employee, he does it as a kindness toward The employee, and not to reduce the debt owed by the wrongdoer.
The rule, known generally as the collateral source rule, has been sometimes criticized and often defended. There are several present proposals to abolish the collateral source rule in order to reduce the level of tort recoveries and thus, hopefully, to reduce insurance premiums. The Keeton-O'Connell plan, for example, deducts all outside benefits received by the injured person. Some insurance companies which oppose Keeton-O'Connell espouse the deduction of collateral source benefits in the computation of damages. Others do not.
The chief argument against the collateral source rule is that the victim ought not to be compensated twice. This is the major argument of Keeton and O'Connell, who do not wish him to be compensated even once, in full measure. If the victim's medical bills are paid by Blue Cross, it is said, then he ought not to be enriched by collecting again from the careless driver who caused those bills to be incurred.
The basic fallacy of the argument is that it assumes that Blue Cross is a benevolent charity which dispenses its benefits for the love of mankind. Of course, it is not. It is a risk-sharing system for prepaying medical costs to reimburse for the hospital bills a person will incur. The same is true of Blue Shield or Medical Mutual with respect to doctor's fees.
If the plan is financed by employer payments under an employee welfare plan, it should not be assumed the employee receives charity. It has become usual for unions to negotiate for fringe benefits in wage contracts. The cost of fringe benefits is counted as part of the wage package. The employee receives his hospital and medical bill insurance in place of cash wages. There is no doubt that he earns the premiums, by his labor, every hour that he works. In effect, he authorizes the employer to deduct from his paycheck the cost of the premium and pay it directly to the insurance fund for the employee's benefit.
The same observations apply to health and accident or disability insurance. The person who pays the premium out of his income denies himself other goods he might have purchased. The argument that the wrongdoer should not have to pay because some other insurance fund paid the doctor ignores the basic truth that the victim paid the insurance fund so that it could pay the doctor. These are part of his "savings”, like his bank account. Those shallow analysts who would abolish the collateral source rule would be more logical if they proposed to reimburse the victim for all the premiums he paid, or earned, in order to obtain the benefits.
The fact is that very few victims receive pure charity. They receive pension benefits, or sick benefits, or insurance benefits they have earned. There is no reason to take such benefits away and give them to the wrongdoer.
On the other hand, we recognize that some of the disabled and injured do receive benefits, by happenstance, which they have not prepaid. The broken leg may be set and treated in a charitable clinic maintained by philanthropic donations. The victim may be a casual passenger who receives the medical payment benefits that come to him from the owner's insurer with no contribution on the passenger's part. In these cases the correct analysis would be to state that the victim sustained no loss of present funds or past savings, and should not be reimbursed simply because there was no loss.
The test should not be based on whether the wrongdoer receives diverted benefits. The true test is whether the victim has either sustained the loss directly, or has anticipated the chance of loss and has prepaid it.
ATL will endorse a modification of the collateral source rule which will eliminate double recovery in those instances where the single recovery has come from charitable sources or from sources unrelated to contribution in services or otherwise by the victim who receives the benefit. Even in these cases it must be borne in mind that the benefit may come with lien attached. If the beneficiary must return the gift in the event of recovery, then obviously he must retain the right to include that sum in the general recovery to which the donor's lien will attach.
CONTINGENT FEES It does not seem to us that the question whether the plaintiff hires his lawyer on a contingency basis or on an hourly basis has much to do with the question of what is the fairest reparation system for automobile-inflicted injuries. Almost all of the complaints about contingent fees come, not from the public who like the system, but from the insurance industry which has an economic selfinterest in keeping injured claimants from receiving the beneficial advice of lawyers.
ATL's position on contingent fees and on referral fees is fully stated in the following canons which ATL has officially adopted for its membership:
"1. Recognizing the desire of the American public to have available a contingent fee in personal injury litigation, and recognizing the historical justification and proven value of the contingent fee in all the states, the following statement of ethical principles is announced :
"An attorney entering into representation of a personal injury client should make available to the client a choice between being represented upon a basis wherein the fee shall be entirely contingent upon recovery of damages, or, in the alternative, upon the basis of a non-contingent fee predicated upon the importance of the problem involved and the services to be rendered.
"In the latter case, wherein the fee shall be non-contingent, the fee may be payable periodically either in anticipation of services to be rendered or in payment of services rendered. A retainer fee may be required wherever practicable, applicable towards either the costs, the fees, or both.
"If the fee is to be contingent, in determining the fee schedule and the basis to be offered to the potential client, careful consideration should be given to all material factors, including, among others, the size of the potential recovery, difficulty or simplicity of establishing liability, causation, damages and collectibility, as well as the stage of progress of the claim or lawsuit at its conclusion. A higher percentage contingent fee may be appropriate as to lower or lesser amounts of recovery, with a lesser percentage applicable to larger amounts. In any event, fee arrangements should be reasonable. Ordinary litigation matters should not entail contingent fees in excess of one-third of the gross recovery, recognizing, however, that special circumstances may justify a higher or lower percentage fee arrangement.
"It is recommended that all fees for services to minors or incompetents should be subject to review and approval by an appropriate court.
"2. A lawyer may, with the consent of his client, associate another lawyer outside his firm with him in a particular matter. He may be required to do so by court rule, and should elect to do so whenever his client's cause needs the competence and skill of an associated lawyer.
"The total fee must remain reasonable and should not be increased in contemplation of referral, but the fee may be fairly divided between the lawyers, with due consideration to the services performed, the trust and confidence reposed in the lawyer initially chosen by the client, and the responsibility assumed by each lawyer in performing the services and in counseling the client. In the event the lawyer to whom a case is referred for preparation and trial or settlement performs substantially all of the litigation services, his proportionate share of the total fee should not be less than two-thirds.'
THE UNCOMPENSATED VICTIM
The various plans to give everybody a little (but nobody very much) use as a justifying argument the fact that a substantial number of injured motorists remain uncompensated and suffer hardship under the present system.
The fact is that the number of persons who receive no compensation from any source is small, and will be even smaller if the reform proposals outlined above are put into effect.