Originally posted by Oldman731
Having read through this thread, I have to say that you continue to surprise me, Hortlund. One might expect you to be just a bit more reserved in your comments on a foreign legal system with which you have no experience. Since most posters on this board lack your level of familiarity with the system, they've perhaps been at a loss to deal directly with your charges.
I'm not.
Your OJ understanding is flawed. OJ was acquitted by a jury in his criminal action in a state court case. He was held liable for money damages in a federal court case. That is not double jeopardy. You know, as well, that because the burdens of proof are different in the two types of cases (reasonable doubt in criminal, preponderance in civil), the criminal court's finding was not res judicata in the civil case.
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OJ was tried for the same action twice [killing 2 people]. That is double jeopardy. It matters not that one case was a criminal case and the other one was a "private" case. Especially not since one can argue that punitive damages is a form of punishment, albeit a financial one (and indeed, isnt that the whole point with such damages).
I can honestly say that I do not understand your line of reasoning in this part. Apparently you have a different version of res judicata than we have over here. I find that both curious and somewhat strange. To be honest, I get the feeling that in the US you want to keep that double shot in some cases, so you squeeze it in by changing your definition of res judicata.
In short, the res judicata-model we have over hear means that if something has been examined in one trial, it cannot be used as evidence in another trial. If I try to translate it to US terms, I suppose it would go something like this, the not-guilty verdict in trial #1 would constitute sufficcient evidence in trial #2 to aquit the defendant. This because in trial #2, the plaintiff would not be allowed to use any evidence from trial #1, since the defendant already has been declared not guilty there. The different burdens of proof in a criminal and a private case really has got nothing to do with that.
Others have provided you with the correct story of the McDonald's coffee trial. No one expects to be served coffee that will cause permanent injury if spilled. McDonald's had been forewarned. Your denigration of the consequent lawsuit seems to me to imply that you think it would be fine for McDonald's to continue to serve the coffee. US law says otherwise.
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I have read the McD story many times, heck we even use it in lawschool here in Sweden (together with that Texaco case...are you familiar with that one? How did it end? $11 billon in damages? Good bye Texaco).
I see that we are approaching the different philosophies in our legal systems here. You say no one expects to be served coffee that will cause permanent injury if spilled. I say everyone knows that coffee is served hot.
In Sweden the idea behind damages is to compensate for damage caused. I really dont know what the philospohy is in the US, but it appears to be more along the lines of "hit them where it hurts" (ie the wallet). In Sweden we take people guilty of criminal negligence to court and put them in jail, we dont take their money. Any culprit in a damages case gets to pay for the damages he caused, but we dont add a rediculous amount of money on top of that so that the hurt party will "feel better" (I dont know the correct translation).
I am not even going to address your claim that our legal system is throttling our economy. I'm happy to compare our economy with anyone's - including Sweden's.
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See Texaco above. Im pretty sure they think your legal system suck ass.
You don't like contingent fees? OK, then, we can let poor and middle-class people do without lawyers and lawsuits, because that's the only way they can afford them for any case that is going to involve extensive lawyer time. I have no doubt that there are fewer lawsuits in Sweden than America because of this. Frankly, I like the idea of permitting people to have access to a dispute resolution mechanism.
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Why would the poor and middle class do without lawyers? Dont you see that it is the other way around here?
Swedish method: In certain types of cases (mostly custody cases and in all cases where the government is involved), the government pays for the lawyer costs. Basically, there are rules on how much a lawyer may charge his client in cases where the client has applied for government "funding", you then check the annual income of the client, and based on that income you get percent-figure. After the trial, the government pays the lawyer for his costs, and then the client pays whatever percentage of that sum to the government.
In other types of cases (when the dispute is over something of marginal value, currently less than $2000) each party has to pay his own costs, regardless of the outcome. In these type of cases, you often see people appear before the court without representation...which can be kinda fun/tragic. In such occasions though, the court has a very large responsibility to help both plaintiff and defendant with the trial...as I said, those can be fun/frustrating.
Then you have the "normal" cases where the losing side gets to pay the winning side's lawyer costs. Trust me, there is not a better way to get rid of the ludicrous lawsuits. In the US, many seems to be of the "thats a big company, lets sue..its worth a try"-philosophy... trust me, it would not be as interesting if you knew that you had to pay their bills if you lost.
It is expressly forbidden for Swedish lawyers to take a percentage of the "win", any lawyer caught trying to do that lose his license immideately.
But I can see why a US lawyer would feel reluctant to change the US system. I will not comment on why that is though.
Finally, I understand that you do not like the jury system. Too bad. Believe it or not, it is not something invented in America. It goes back a thousand years in England. It's different from your system, which I have observed, as well (I was in Luxembourg two weeks ago for a proceeding in the EC's Court of First Instance). I express no opinion on which is better; here, we have always thought that community participation in the justice system is a good thing. However, before you trash something that has worked pretty well for a very long time, you ought to know more about it than you evidently do.
Really pretty disappointing.
- oldman
Funny, I thought I knew pretty much all there is to know about the jury system. From how jurors are chosen from the public and then how the 12 jurors in a trial is chosen, and finally what they get to do during the trial. But you are of cource correct, you know more about these things than me.
I am of the opinion however, that complicated legal desicions are better left to professional judges than just some average Joe pulled from the street. There are alot of examples of outrageous results coming from your jury system. OJ and King are only the two most famous ones, those rulings are both embarrasing for you and completely insane. Combine that with the fact that you still have the death penalty, and you might get a hint as to why US law is held in low esteem in Europe.
