Why We Need Tort Reform

[CuteOldGuy]

Just happens to be a Democrat. Could be a Republican. Always a politician.

http://www.usnews.com/opinion/blogs/...-election-loss

[TexTushHog]

I've probably reviewed over 250 so-called "tort reform" bills that have been filed in Texas over the past 10 years, and a good double hand full in Washington. I've never seen any bill that would address this type of case.

Or course the article is horribly biased, so one has no idea what to believe. It says "So he did what anyone does in today's culture: he sued somebody." The reporter obviously did no research since statistics show that per capita no more law suits are filed today than have ever been file if you exclude 1) increased numbers of divorce filings; and 2) eliminate asbestos cases (which are unique as asbestos was the largest mass tort in history).

That being said, it's not clear what the article means when it talks about the judge "allowing the law suit to go forward." Was there a motion filed? Was it a Motion to Dismiss or a Motion for Summary Judgment. Two very different types of motions with very different standards of proof. I would imagine that the PAC will get out on Summary Judgment because the Plaintiff cannot prove actual malice.

On the other hand, if the Plaintiff can prove that 1) the representation of the Defendant were false; 2) that the Defendant knew that they were false; and 3) that they Defendant was motivated by actual malice that was personally directed at the Plaintiff, why shouldn't they be subject to suit? There are some limits on free speech and deliberate falsehood motivated by actual malice against a public figure is one of them. But that is a very, very high burden and one that I doubt that the Plaintiff can meet. But if he can, the those who committed the wrong doing should be responsible for the harm that they caused.

[CuteOldGuy]

He lost an election. The reason he lost is that the other guy got more votes.

[Whirlaway]

Best Tort reform would be to have a court/lawyer organizaiton that is willing to yank the licenses of the many lawyers who file weak and sometimes phony cases...all in the hope of intimidating a company to pay up....to avoid litigation and harmful PR.

Jessie Jackson was the best at this technique; but he is a preacher man.

[TexTushHog]

Originally Posted by CuteOldGuy

He lost an election. The reason he lost is that the other guy got more votes.

Do you think that anybody should be allowed to publish things that they know to be false with malicious intent about candidates to public office?

Let's say you run for the local school board. I'm a newspaper publisher who doesn't like you. I hear a rumor that you have a conviction for child abuse in a town an hour away where you used to live. I send my reporter to check it out. Turns out it's a guy with a similar name, but with a different middle name and a different birth date.

My reporter interviews the guy that was guilty and he says, yeah, it was me, not COG. But because we had similar names, and it was a small town, it caused him some embarrassment when a few people misunderstood. I don't know COG, but everybody I know says he's a good guy. I feel bad for the confusion.

My reporter comes back and says, he's not guilty. No conviction. Rumor is false. Tells me the story.

So two days before the election, I publish and editorial and put a graphic in the paper with the criminal complaint and the jury's guilty verdict with the other guy's name and claim it's you. I know it's false. I do it knowing it's false just to fuck you. It works. You loose.

You're telling me that's OK? That shouldn't give you a right to sue me? I'd like an answer to those questions.

Now I have no idea if this guy can proved that the Defendant knowingly published a statement that he knew was false and did it with malice. That's a very high standard. But it's not an impossible standard. And if he can prove it, he should win.

[dilbert firestorm]

Originally Posted by TexTushHog

Do you think that anybody should be allowed to publish things that they know to be false with malicious intent about candidates to public office?

Let's say you run for the local school board. I'm a newspaper publisher who doesn't like you. I hear a rumor that you have a conviction for child abuse in a town an hour away where you used to live. I send my reporter to check it out. Turns out it's a guy with a similar name, but with a different middle name and a different birth date.

My reporter interviews the guy that was guilty and he says, yeah, it was me, not COG. But because we had similar names, and it was a small town, it caused him some embarrassment when a few people misunderstood. I don't know COG, but everybody I know says he's a good guy. I feel bad for the confusion.

My reporter comes back and says, he's not guilty. No conviction. Rumor is false. Tells me the story.

So two days before the election, I publish and editorial and put a graphic in the paper with the criminal complaint and the jury's guilty verdict with the other guy's name and claim it's you. I know it's false. I do it knowing it's false just to fuck you. It works. You loose.

You're telling me that's OK? That shouldn't give you a right to sue me? I'd like an answer to those questions.

Now I have no idea if this guy can proved that the Defendant knowingly published a statement that he knew was false and did it with malice. That's a very high standard. But it's not an impossible standard. And if he can prove it, he should win.

that's fine if he/she can prove that.

however, there is a problem with a judge who has ties to a certain organization that is involved in this case and failed to recuse himself from the case.

[CuteOldGuy]

TTH, first, he would have to show that the false statement affected enough votes to cause him to lose. There is no way to prove that.

Of course, if the statement is proven false, he may be able to seek damages pursuant to NYTimes v.Sullivan, but I believe he would have to prove a causal nexus between the statement made and the damage incurred. As a public figure, I don't think common law libel would provide a remedy.

Besides, lying about and smearing opposing candidates has become a tradition in American politics. It's the politics of personal destruction we've all come to love and expect.

[TexTushHog]

1) without going back and reading the story, I would think he would only have to prove the false story only damaged his reputation. He's not seeking his lost wages from the elective office as damages, surely? If so, he will have a heavy burden, indeed, though again, not necessarily an impossible one if enough polls were run in the applicable time windows and they ate clear cut enough.

Common law defamation after Sullivan is still viable ispf he can prove actual malice. But 1) I think Sullivan is wrongly decided; and 2) even under Sullivan it all depends on the evidence.

Dilbert, I can't speak to the recusal issue. I don't know what jurisdiction, know their recusal law, or know the facts. But if the Defendant has asked the judge to recuse himself, that sets an entire string of events into motion. But they vary from State to State and are, at least in Texas, different in State and Federal court. Just to take one easy sample, in State court in Texas, a judge rules on whether he is recused. In Federal Court, a second Federal judge rules on whether the first judge is recused. A judge can't rule on his own recusal. So issues of recusal are never as simple as they seem. Plus, there are lots of "inside baseball" types of strategic issues that go into the decision of whether to ask a judge to recuse, not the least of which is what judge you are likely to get if you win the motion. Sometimes you might have a good shot at recusal, but deliberately choose not to seek it be ause he judge you know yu would get instead would be worse for your particular case.

[Laz]

Loser pays law is the best solution. Anyone with a legitimate case can still file and those without a good case will not due to the odds they will lose and have to pay. In England you can buy insurance inexpensivly to protect you if you end up losing and have to cover the cost.

[TexTushHog]

Originally Posted by Laz

Loser pays law is the best solution. Anyone with a legitimate case can still file and those without a good case will not due to the odds they will lose and have to pay. In England you can buy insurance inexpensivly to protect you if you end up losing and have to cover the cost.

So long as it works both ways, that's great!! Unfortunately, the law that was proposed in Texas last session, if a Plaintiff lost, he would pay the fees of the Defendants' lawyers. But if the Plaintiff won, the Defendant didn't pay any attorneys' fees. Defendants' having to pay attorneys' fees -- especially if they have to pay those fees actually contracted for and paid by the Plaintiff -- would be great for me and my clients.

[CuteOldGuy]

Uh, I think "loser pays" is self explanatory, and would, by definition, include both sides.

I have no explanation for the type of people Texas elects.

[Laz]

Originally Posted by TexTushHog

So long as it works both ways, that's great!! Unfortunately, the law that was proposed in Texas last session, if a Plaintiff lost, he would pay the fees of the Defendants' lawyers. But if the Plaintiff won, the Defendant didn't pay any attorneys' fees. Defendants' having to pay attorneys' fees -- especially if they have to pay those fees actually contracted for and paid by the Plaintiff -- would be great for me and my clients.

Agreed.