Posted on 04/13/2005 5:51:47 AM PDT by WaterDragon
Interestingly enough, there was rider on a relatively recent Texas bill (the principal bill was for the unremarkable right to establish seperate dockets for unimpaired asbestos plaintiffs) that would have permitted asbestos defendants to seek recovery of fees and expenses from the plaintiffs.
An amazingly bone-headed political move (I'm sure you can hear in the background the shouts of "picking on the victims to line the pockets of the evil corporations"). Not surprisingly, the entire bill died in committee.
That's too bad; the principle seems sound enough. Of course I don't know anything about this particular proposal and I might not have agreed with its specifics. (For example, if it made recovery of legal fees and costs too easy, I might have thought it was too strong a disincentive to financially strapped plaintiffs. On the other hand, I'm not a tort lawyer and my opinion on this subject doesn't involve any particular expertise.) But the idea seems to be an improvement over leaving the costs where they fall.
What about plaintiffs' recovering of their fees and costs from losing defendants? Was that also part of the proposal, or does Texas law already allow that?
Why does everyone give up so quickly? Hell, there wasn't even a fighting tone in this statement...just a "oh well, when does Survivor start?" type of attitude.
At what point in our history did we become so...pathetic?
DeLay will.
if he stays in power.
Texas law is mix and match on plaintiffs recovery of costs and fees. In breach of contract actions and most statutory tort actions (stock and real estate fraud, DTPA, etc.) the right to seek costs and fees is explicitly set out.
In common law tort claims, costs and fees can be included in an instruction covering permissible factors to be considered in awarding punitive damages, but there is no severable right to seek recovery.
And no, plaintiffs right to recovery wasn't part of the proposal. The idea seemed to be that plaintiffs were otherwise entitled to seek punitives (which, of course, are now statutorily limited). Appearances to the contrary, we're not really known down here for our political savvy.
The good argument for refraining from insituting "Loser Pays" seems to be that poor folks won't have access to our legal system if they're gonna be on the hook fer attorney's fees if they lose. However, I believe law firms will still take on good suits on a contingency basis; however, they would be far less inclined to launch spurrious lawsuits if they know they are gonna have to eat the costs if they lose. I think lawyers being a bit more picky in what lawsuits they are willing to pursue is an unmitigated good.
FReegards...MUD
The idea seemed to be that plaintiffs were otherwise entitled to seek punitives (which, of course, are now statutorily limited).
Aha. So the proposal in question would have allowed (successful) corporate defendants to seek full recovery of all their legal fees and costs from (losing) individual plaintiffs, but it presumed that (successful) plaintiffs could fold the recovery of their own fees and costs into their damages, even though their punitives are now capped under tort reform and there's no separate recovery for legal fees.
Yes indeed, I might have a wee issue or two with that ;-).
Well, somebody's gotta pay fer Malpractice lawsuits that are successful.
"...there's vocal and trenchant opposition to overcome."
Yes, they are called Trial Lawyers, a DemonRAT constituency that the GOP should be willing to IGNORE since they are such loyal RATS.
Pretty darn good summary of the arguments.
The good argument for refraining from insituting "Loser Pays" seems to be that poor folks won't have access to our legal system if they're gonna be on the hook fer attorney's fees if they lose.
Yes, this is by far the strongest argument in favor of the leave-the-costs-where-they-fall system.
However, I believe law firms will still take on good suits on a contingency basis; however, they would be far less inclined to launch spurrious lawsuits if they know they are gonna have to eat the costs if they lose.
Perhaps, although strictly speaking it's supposed to be the job of the court to decide what is and isn't a winning suit. In general I'm not happy about deliberately limiting access to the courts even for 'losing' suits; there is, after all, such a thing as summary judgment, and the judge can toss a case if it turns out to be truly meritless.
At any rate I'll be more inclined to support a loser-pays proposal if it's not accompanied by tort reform; loser-pays and damages caps is too much.
Yes, they are called Trial Lawyers.
I'm not a trial lawyer, but I have to point out that the legal system pretty much goes to hell without them. And they're not the ones who decide cases; if you don't like the outcome of a particular lawsuit, your main beef is with the judge and the jury.
Philosophically I agree. I think there are instances, however, where loser pays would nip certain suits at the filing stage.
For example, we had a pretty good spate of blue-sky based stockholder strike suits that were groundless, very difficult to summary judgment out, and filed for the obvious purpose of forcing a settlement.
Other somewhat uniquely Texas based scams are the royalty and offset well suits that come out of the valley -- local family money, local judges, and local mediators combine for the perfect storm. As one of my clients put it after getting tagged on a trumped up compensatory royalty claim, it was the most gracious, genteel highway robbery he'd ever been involved in.
Philosophically I agree. I think there are instances, however, where loser pays would nip certain suits at the filing stage.
For example, we had a pretty good spate of blue-sky based stockholder strike suits that were groundless, very difficult to summary judgment out, and filed for the obvious purpose of forcing a settlement.
Other somewhat uniquely Texas based scams are the royalty and offset well suits that come out of the valley -- local family money, local judges, and local mediators combine for the perfect storm. As one of my clients put it after getting tagged on a trumped up compensatory royalty claim, it was the most gracious, genteel highway robbery he'd ever been involved in.
Those do sound like situations in which loser-pays might have a beneficial effect. In general I'm open to argument on the subject, and as to the particulars I gladly defer to the judgment of those (like you) with more knowledge of that area of the law. My opinion about access to the courts is a rebuttable presumption.
Muchas gracias...MUD
Still, it seems like far too many lawsuits making it through like that lady spilling McDonald's coffee in her lap and winning $millions.
FReegards...MUD
I'm not proposing we outlaw trial lawyers...LOL!! I just think we need to do a better job leveling the playing field...MUD
Still, it seems like far too many lawsuits making it through like that lady spilling McDonald's coffee in her lap and winning $millions.
Actually that one wasn't as frivolous as a lot of people think. I won't sidetrack the thread with a full discussion but you can read some of the pertinent facts here, here, and here. (A Google search -- e.g. 'liebeck mcdonalds' -- will get you lots more.)
I'm outta here. Happy trails, everybody.
I still think Jeb should've taken action first as it happened in his backyard. However, since he did nothing, I agree the President should have done what you suggest.
It's a perfect morality tale exposing everything wrong with a litigious American society whose members refuse to accept personal responsibility. The McDonalds lawsuit was ridiculous, right? We're all bearing the burden of higher insurance rates because there is an epidemic of lawsuits, right? Malpractice lawsuits are driving doctors out of business, right?
Well, not really.
"Here's what the talk show pundits and columnists neglected to mention about the McDonalds coffee burn case: 79 year old Stella Liebeck suffered third degree burns on her groin and inner thighs while trying to add sugar to her coffee at a McDonalds drive through. Third degree burns are the most serious kind of burn. McDonalds knew it had a problem. There were at least 700 previous cases of scalding coffee incidents at McDonalds before Liebeck's case. McDonalds had settled many claim before but refused Liebeck's request for $20,000 compensation, forcing the case into court. Lawyers found that McDonalds makes its coffee 30-50 degrees hotter than other restaurants, about 190 degrees. Doctors testified that it only takes 2-7 seconds to cause a third degree burn at 190 degrees. McDonalds knew its coffee was exceptionally hot but testified that they had never consulted with burn specialist. The Shriner Burn Institute had previously warned McDonalds not to serve coffee above 130 degrees. And so the jury came back with a decision- $160,000 for compensatory damages. But because McDonalds was guilty of "willful, reckless, malicious or wanton conduct" punitive damages were also applied. The jury set the award at $2.7 million. The judge then reduced the fine to less than half a million. Ms. Liebeck then settled with McDonalds for a sum reported to be much less than a half million dollars. McDonald's coffee is now sold at the same temperature as most other restaurants."
Thanks fer the clarification...looks like the judge corrected the overzealousness of the jury in assessing Punitive Damages--which I have a major problem with, BTW--but the very fact that we have juries awarding $2.7 Million awards fer spilt coffee is anathema to me.
Anyways, nice chattin' with you and have a good day.
FReegards...MUD
interesting dialogue, thanks for the ping, Mud.
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