Page:The Green Bag (1889–1914), Volume 18.pdf/228

 THE ABUSE OF PERSONAL INJURY LITIGATION should be granted, upon condition, how ever, that the prosecution of the case in favor of this ward of the court should be confided to a reputable and experienced lawyer, to be appointed by the Court, who may thereafter dismiss, settle, or contest, as his judgment may dictate as best for plaintiff, his fee to be fixed by the Court, and taxed as part of the costs in the case, to be paid by the defendant in the event that final judgment be had for the plaintiff, otherwise to be paid by the county just as are the other costs incurred by the plain tiff. As a rule the real interests of the claimant will be far better protected in this way than as now in the hands too often of the ignorant, inexperienced, and grossly selfish practitioner, who in the vast majority of cases has been an entire stranger to the claimant until he proposed the unholy partnership. Suggestions as to a restriction or modifi cation of the right of trial by jury in these cases have been made. Space forbids my entering upon any enlargement on this point. The impulse in the ordinary juror to relieve the suffering and needy at the expense of a presumably rich corporation protected by a supposedly richer insurance company, is almost too great for human nature, as exhibited in the jury box, to resist. In the large majority if not in all cases the judge is much more capable in ever- respect of solving disputed questions of fact, or of mixed law and fact, than the jurors ordinarily obtainable. So, too, a restriction or modification of the right of appeal has been suggested. A diligent reader of the West National Re porter System, having this class of cases especially in view, is amazed at the con stantly increasing number of these cases decided by our courts of last resort through out the country, and at the comparatively few which decide any question either new or important in this branch of litigation. The fact is that most of these cases are defended by parties whose early attempts

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at fair adjustment have been repelled, and who have a very natural distrust of the results obtained by jury trial by reason of the abuses which they know exist, and which we are here discussing. Supplied with ample means for defense, they deter mine to defend to the bitter end, often from a high sense of what is due to themselves and to society in resisting injustice. The result is that almost every adverse judg ment is appealed from. In the course of the trial, with an appeal in view, all manner of questions are raised, having but remoteconnection with the real merits of the case and ultimate rights of the parties; instruc tions, having any purpose but to instruct, are drawn and requested; and often the sum mary brief on motion for new trial presents but little resemblance to the elaborate onesubmitted in the higher courts. Space for bids more on this point. ' With the corrections of the abuses to be obtained by legislation, permit me to add one word. Attempts at the definition of rights, or the abolition of common-law de fenses, by statute, are often unfair on prin ciple, and lead to new floods of litigation. The statutes have to be construed and then amended and then reconstrued and again' amended, and so on, as long as the intellect of man and human language are imperfect. Compulsory insurance grants relief certain and expeditious, and places the burden where it rightly belongs and ultimately must rest — on society at large. We, in this country, seem hardly prepared to follow our European neighbors on this lead. I have heretofore, however, suggested a plan of accident insurance which, if generally adopted, I believe would give the employer all the protection he now gets from his Em ployers' Liability Insurance policy, and pro vide protection for the employee, and domore towards the removal of the abuses of personal injury litigation than all the other methods heretofore suggested, and this con sists simply in the extension of the princi ples underlying the ordinary Railway Vbl