Posted on 07/07/2010 5:14:51 AM PDT by Kaslin
BFLR?
I doubt loser pays will do much to change the situation as long as we permit spurious class actions and permit these Plaintiffs to pick their jurisdiction.
I propose as a cure nationalized legal care.
Bump for later reading
No and partially no.
You know quite well that a legislature passes a law that is signed by a Governor. So cut the crap. If your meaning is that legislators are lawyers too, then you just want a boogeyman.
Judges do not make law, they recognize what the law is, if they are applying common law. Then at the ned of a trial, they tell the jury what the law is that the JURY must apply. The JURY decides the case, not the Judge.
The Judge has the most influence in selecting the jury that is actually seated through sua sponte challenges for cause, where a Juror admits to a bias, or expresses that service will be an "economic hardship." So what you get are juries that skew toward government workers, retirees and larger corporations. So what kind of bias do you think they have? Peremptoory challenges are for them, if you want to keep the pro big recovery crowd out of your jury.
Tax paying, insurance buying, home owning, small business owners are underrepresented, because they all head for the "economic hardship hills."
The theory is that rather than merely compensating a victim for his or her loss, the system should also be used to force a manufacturer to modify its product to make it more safe. This goal is responsible for many of the abuses and problems we see today in the tort system.
The purpose of Tort law has always been to shift the economic cost to the person that caused it, rather than having the injured bear it, in order to deter bad behavior. There has always been a moral component to tort law, with immoral conduct being deterred by associating a cost with it. Torts, rather than implementing a subjective morality, find their basis in an objective standard of conduct.
You would be my kind of Juror. However, the power of a Judge to dismiss a case is limited. All of the facts alleges must be taken as conclusively proven and the application of the law to those facts must lead to one inescapable conclusion.
Bad cases like the one you describe are rarely brought. A Lawyer puts a substantial investment of time into cases. If you pick poorly, you won’t be in business for very long.
There are severla fee shifting statutes here in the states. For example, a prevailing party in a discrimination case. If you have a clearcut case, you will often see a team of lawyers for the Plaintiff turning over every rock. The defense then pays a half a million dollars in shifted attorneys fees and fifty thousand to the victim. Fee shifting just creates different types of abuses.
To be more specific, Greenman v. Yuba Power Products, 59 Cal. 2d 57 (1963), the seminal case introduced the concept of strict liability and greatly expanded the role of traditional tort liability in products cases. The concept has been expanded much further under the progeny of Greenman and in my mind too far. To the extent that we have a woman claiming injury and being awarded damages for putting a hot cup of coffee between her thighs while driving is permitted, the concept of causal connection appears to be diminished beyond reasonableness.
If the shoe fits......
Who's dishing the crap here, counselor?
“Bad cases like the one you describe are rarely brought.”
I hate to say it but you obviously don’t live in LA or SC. In LA certain parishes love this type of etoh case and in SC train crossings are popular.
If an atty hires me as an expert I refuse to meet the client. I only want the facts necessary for my opinion. I don’t care if they are a quad. My opinion doesn’t change regardless of the side that hires me. I can’t count the number of attys that I have had to explain what forensic means to an expert and those were just the Harvard grads.
I guess that makes me a Blind Fool who’s Lightly Retarded.
Thanks
Are you a tort lawyer? Are you acquainted with tort lawyers? Do you know what a strike suit is? It’s a species of nuisance suit, and it is brought by plaintiffs’ attorneys in this way: they find somebody who has a colorable claim to a possible injury, but on a claim that will involve a lot of very expensive discovery before you even get to trial (expensive, that is, on the part of the defendant, who will be compelled to pay for hundreds or thousands of man-hours to scour its records, review the documents, and then make copy-sets to send to the plaintiffs’ attorney; the plaintiffs’ attorney’s main cost - unless the defendant enough gumption to fight - is the cost of replacing the toner cartridge in his or her printer). The plaintiffs’ attorney then files suit, and starts offering a “settlement” that is just under the net present value of what the defendant would otherwise have to pay in discovery and other pre-trial costs. Of course, the plaintiffs’ attorney typically keeps 30% or so - after deduction of all litigation-related costs and other overhead costs, such as paper and the attorneys’ secretary.
This gets supercharged if the plaintiffs’ attorney manages to score a potential class-action suit, in which the potential discovery costs skyrocket.
At the end of the day, typically, in a class-action strike suit, the members of the class - most of whom have no idea that they were members of the class, in large part because most of us don’t go around scouring the legal notices section of the various “newspapers of record” to see if there are any class action notices that might cover us - will recover pennies, if that, on the dollar, and the plaintiffs’ attorneys will walk away very rich men.
And all of that before we even get to the issue of utterly meaningless standards of compensable injury that allow willful, tainted juries to give away the store.
What should the current state of affairs be replaced with? For starters, let’s get rid of contingency fees - if a plaintiff is too poor to pay fees, or the claim is too small to support the fees the attorney will charge, then the case is perfect for a pro-bono or low-income clinic, of which there are scads (and which would be more available to handle real plaintiffs with real injuries who need pro-bono or low-cost representation if they were prevented from pursuing the leftists’ version of the strike-suit - the politically-motivated class action). There are very, very good reasons why champerty was (and technically still is in many states) illegal, and the typical contingency fee arrangement has become more or less as fraught with abuse, or the potential for abuse, as the circumstances in which the rules against champerty originated. As such, contingency fee arrangements should simply be made illegal, period, because they too often constitute nothing more than old-fashioned champerty.
That should be a good starting point. We’ll put that into place, and then see how things shake out once the changes have had time to filter through the whole system, and we can then re-assess what else might need changing.
Lawyers don’t make the laws - so when I see crap I call it crap, sir.
I do not practice in LA or SC, but I certainly know what a forensic expert is. I have retained many.
There is a self limitation to the lawsuit market. If a lawyer files a suit that should not have been filed, the lawyer suffers. Make too many mistakes like that, and you’re out of business.
I am speaking more to what makes a suit that should not be brought as opposed to one that is meritorious. Lawyers don’t decide that - JURIES DO. They are the ones that ultimately decide who prevails and how much the damages are. So why is it that whenever the media reports an excesive verdict, the lightning bolts land on the lawyers? Our focus as a society is in the wrong place.
Yes. Insurance companies send cases to me or my firm to defend their insureds. I have been doing this since 1986.
Are you acquainted with tort lawyers?
Of course.
Do you know what a strike suit is?
My understanding of a "strike suit" is when shareholders of a corporation file a derivative action that alleges a majority of a Board of Directors have breached a fiduciary duty. It is ordinarily something that would be handled in a Chancery Court, which do not afford jury trials. A "strike suit" does not involve a "tort", so this is a little off topic. I have no experience with "strike suits" and I rarely get involved in matters that involve corporate governance.
There are very, very good reasons why champerty was (and technically still is in many states) illegal, and the typical contingency fee arrangement has become more or less as fraught with abuse, or the potential for abuse, as the circumstances in which the rules against champerty originated.
Not really. The Champerty Act of 1275, 3 Edw. I c. 25, enjoined the officers of the king, at the chancellor, treasurer, justices, king's counsellors, clerks of chancery and exchequer from gaining ownership the the res before the court. The abuse at that time was that certain nobles were accumulating claims against others, in order to influence their position in the Court - not a Court of Law. The remedy was punishment by the King. So the statutory offense was intended to prevent infighting in the King's Court - nothing else.
if a plaintiff is too poor to pay fees, or the claim is too small to support the fees the attorney will charge, then the case is perfect for a pro-bono or low-income clinic, of which there are scads
Maybe in the big cities you may find such a legal clinic, but not elsewhere. Then you will get lousy representation, if you do send cases like that to legal clinics. The result is that somebody who should have received a recovery from a private source, who takes personal responsibility for their actions, will not have the wherewithall to take care of themselves. So they become dependent of the public dole. Why is that a good thing?
Furthermore, loser pays has its own set of legal abuses. We have several fee shifting statutes on the books like 1983. If you have a good case, even if it is not worth much, you will get two or maybe more lawyers turning over every rock. The end result - Plaintiff gets a moderate recovery, and the attorneys get ten times as much in fees. Why is THAT good?
“So why is it that whenever the media reports an excesive verdict, the lightning bolts land on the lawyers? Our focus as a society is in the wrong place.”
I would agree with you if it wasn’t for the fact that so many of our legislators are lawyers and vote their self-interest. The laws need to be changed and soon and I don’t mean caps on awards. Class actions would be my first area of reform if I could have my way.+
Too many here don’t realize that we write our reports and testify (if your not a ho) on the scientific facts and not for the benefit of one side.
BZZT, wrong answer Hans.
Nearly half of congressmen are lawyers, not to mention their staff, so they do make the laws. Now if you want to try to say that "When lawyers go to congress they set aside all self-interest and legislate on behalf of the people" I'll just laugh at you.
Not to mention legislating from the bench, unless you're going to try to tell me that doesn't happen either.
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