Yesterday, I had to research and advise one of my civil appellate clients on the issue of posting a bond to stay execution on an adverse money judgment. Now, for my client, an insurance company, this is really not an issue - they have the funds. But what about an average middle-class individual, who has just lost a civil trial, spent a lot of money on attorneys' fees, and has a meritorious appellate issue? Now, on paper, that individual would have the right, uner section 995.240 of the Cal. Code of Civil Procedure, to seek relief from the bond requirement based on his financial condition. However, since the statute refers to indigent individuals, our hypothetical middle-class Joe is probably out of luck. And, with the high rate of affirmance by the courts of appeal, I would probably not advise Joe to take out any loans to finance even the most meritorious appeal - one man's meritorious issue is another man's summary affirmance. On the other hand, the prevailing party (who may also be a similar simpathetic Joe) has a legitimate gripe that it spent a lot of money to win in the trial court and is now entitled to collect on his judgment without waiting several years for the appellate courts to review the matter.
So, how do we solve this? So far, the answer for businesses seems to be to get insured. If Joe-the-business-defendant has insurance coverage for the judgment, his insurance company probably has an obligation to post a bond up to the amount of the policy limits to allow Joe to pursue his appeal. However, aside from the fact that the insurance option makes opening a small business that much harder, the insurance solution does not work for Joe-the individual, who is unlikely to spend several thousand dollars per months for an insurance premium.
Is tort reform the answer? I don't think so because many meritorious cases (permanently injured kids, defrauded seniors, etc) deserve and need high damage awards. We have already decided, as a matter of policy, that to the extent both plaintiff and defendant are unable to cover the damages, we protect the injured person and spread the risk. Also, the idea that absolving the corporations from the need to pay high damage awards for defective products would allow them to make a more quality product is beyond naive. Plus, on a more practical level, the concept of equating money with pain and suffering of all kinds seems permanently embedded in our collective psyche.
Well, if you are looking for a definitive answer to these questions, you've come to the wrong place:)
Comments