Asian Nations Experimenting with Jury Trials in Criminal Cases

Perspective matters. In the US, we hear a fairly steady stream of criticism of civil and criminal juries. It's interesting, then, that in some Asian nations, they are experimenting with implementing jury trials as perhaps desirable legal system changes. In general, the proponents argue that juries serve as a bulwark against the government and allow expression of the views of the "common man." The critics generally complain that juries are too unpredictable and do not understand complex issues.

For specifics, the NYT has a July 18, 2008 article about recent high-speed jury trials in criminal cases in South Korea. The International Herald Tribune also has published an article about the jury trial experiments in Korea, Japan and elsewhere. Likewise, a recent article on Law.com described US lawyers traveling to Japan to consult with Japanese lawyers in light of Japan's experimentation with jury trials for serious criminal cases. The experiment in Korea with juries for criminal cases also is the subject of Korean law blog commentary.

Interesting Opinions

2009 Wisconson Supreme Court opinion holding that manufacturers of white lead pigment could not be held laibile for design defect since the abensce of lead would change the product. The court resolved only the one limited issue and declined to adopt the Restatement (Third) of Torts.

More Asbestos Claiming ? British Government Asks for Views on Pleural Plaques Compensation Issues

Global tort litigation issues continue to evolve. Last fall, the UK's highest court decided that it would not permit recovery of money as compensation for persons found to have "pleural plaques." Pleural plaques are generally deemed benign markers of past inhalation of asbestos fibers. Now, on July 9, the British government issued a request for comments on whether to use legislation to overturn the decision precluding damages.


Specifically, the "consultation" process calls for interested persons to submit views on whether persons with "pleural plaques" should be allowed a chance to recover damages for the physical change in the lungs or anxiety. The consultation paper, number 14/08, is viewable here.

So, what's at stake? In dollars, it's some number of billions; current estimates probably will prove to be too low, just like most other estimates of asbestos costs. In lives, the issue may or may not have significance. Pleural plaques generally are thought not to impair life function in any way, but they generally are considered a marker for past asbestos inhalation. Some may argue that finding those people now will help them later avoid premature deaths by leading them to annual health screenings with a focus on their particular risks.

Back to dollars. The consultation likely will become a fight between insurers and insureds as to which entities pay how much. Insurers and reinsurers will have issues between them. The process also will include battles between solvent entities and entities that claim to be insolvent or are pursuing "schemes of arrangement." Schemes of arrangement? They are end of corporate life financial engineering tools. Insurers like to say that the schemes free up capital to return to the marketplace and stimulate business. Insureds like to say that schemes improperly allow insurers to avoid IBNR claims, which are claims that are foreseeble based on past events, but that have not yet been filed because, for example, the future claimant does not yet know that a mesothelioma tumor already has formed and is growing, at a microscopic level.

Note also that government agencies will have a financial stake. Legislation may help them avoid paying the massive health care costs that may accrue when a mesothelioma is found "early."

The issues also may be described more broadly. This could be a chance to find a fair compensation and medical treatment plan that avoids the many flaws in the current American systems, and to think carefully about how one defines who is "sick" or when they are "injured." This could be a chance to limit attorneys' fees to modest amounts. This could be a chance to take a long term view. This could be a chance to look for new answers.