Law Suits and Popular Ignorance

[Randy4Candy]

Originally Posted by Mazomaniac

Truth be known, I'm actually a keyboard tester for Logitech. I get paid by the keystroke so lost causes are still profitable for me.

Cheers,
Mazo.

Ah, the plot thickens - give 'em hell, then...LOL!

[onehitwonder]

Well I'll be doggone! Onehotmale! How you doin'? You just fell off the face of the "board" You doin' good?

[OneHotMale]

Originally Posted by onehitwonder

Well I'll be doggone! Onehotmale! How you doin'? You just fell off the face of the "board" You doin' good?

Hey 1 hitta how are you doing? I am doing well but just extremely busy in my real life. I assume that you have been on your best behaviour though huh?

[TexTushHog]

Originally Posted by pjorourke

So TTH, what is the best way to AVOID getting picked to be on a jury?

I don't tell people how to avoid jury service. You have a duty in my mind to serve. A judge that I practice in front of regularly, and many judges I've heard bout, tells jurors that serving on a jury is the most important act of citizenship that one can perform other than serving their country in uniform in time of war. I agree. The jury system is the cornerstone of our democracy and more important in my mind that voting. What juries decide has more impact on the kind of country we live in than anything else that a citizen can do.

[TexTushHog]

Originally Posted by CaptainMidnight

That sounds great in theory, and probably works well in practice, too -- at least in many venues.

But what about a place like Dallas, where the jury pool contains far more low income, unemployed or marginally-employed people, and minorities than conservative or successful types? It sure seems to me that locating a trial in a place like that makes it much more likely that you'd be able to seat a group of people skewed toward entitlement-mindedness and sympathy for any party suing a wealthy entity or individual.

Venue obviously makes a huge difference. Just look at the O. J. Simpson criminal trial. I think the guy lucked out big time when the D.A.'s office moved the trial to Downtown L.A., where a jury nullification-minded bunch of people supposedly bought into the claim that he was framed by racist cops and investigators. Does anyone seriously think Simpson could have avoided being sent to San Quentin if the trial had been held in Santa Monica?

If your question is "Are some venues better than others for some parties?" the answer is "Hell yes!" And as a Plaintiffs' lawyer one of my jobs is to find the absolute best and most Plaintiff venue that I can for any given claim among those places the law allows me to file my claim.

And Dallas County, despite what you may have heard, is typically not near the top of any such list. It's a lot better than it used to be, but it's still not good. I'd say it's a moderately poor to fair Plaintiff's County, although it's not bad for the N. Texas area. It's especially bad in low damages, marginal liability cases. It's still got enough white collar folks that if you have a high damages, great liability case, you can get some blue collar folks who are generally Plaintiff friendly if you can cut the younger white blue collars, and still get a decent moderate white collar that can add and multiply for damages. Hopefully, you'll have one blue collar and one white collar moderate leader candidate (maybe a teacher) than can bond and lead the jury. But it's far from a good county.

I've practiced 28 years and never filed a suit in Dallas County and probably wouldn't take even a decent suit there now. It would have to be a lay down liability case with huge damages, or I'd pass it one to a Dallas lawyer. Just not worth the hassle to me. But I go to S. Texas, even the Hill Country, San Antonio (although it's getting worse), Austin (again, getting worse), S.E. Texas, etc. with good cases. Never to West Texas (except once in an amputated arm case and that was a mistake, although I made some money), the panhandle, or the Dallas area. Houston is getting bad, too. I don't know much about El Paso. It's sort of a world unto itself and have never been offered a case there.

And the flip side of what you talk about is the bad county where you couldn't get a verdict against the Romans for crucifying Christ. Try Collin County. Just a horrible venue. All white. All youngish white collar Republicans. It's a black hole for Plaintiffs' verdicts. Same with Rockwall, Smith, Midland/Odessa, Waco, Amarillo, Wichita Falls, etc. All horrible places for Plaintiffs.

[TexTushHog]

Originally Posted by CaptainMidnight

Here's all I ask:

If you bring suit against me and lose, or fail to carry through to a trial, you pay my legal bills for the defense -- every dollar of them. Fair is fair. Sort of like the "English Rule", or some variation thereof.

One question: If I sue you and win, are you going to pay my 40% or pay my fees in the case at $600/hr. (the rate I get on those rare occasions when I work by the hour)? If so, we've got a deal. I've tried somewhere just this side of 150 or 200 cases to verdict and lost 3 - 5, depending on how you define "lost" ($0 verdict versus getting a verdict that was less than the last offer).

Also, what about litigation expenses? Experts witnesses, depositions, copies, travel? Are you willing to throw those into the looser pays pool? I am if it's a two way street. I have an average of about $75 - $100k in my major suits.

Every time the Plaintiffs' bar says, OK, let's do it if it goes both ways, the insurance industry goes ape shit and pulls back. And the reason is that they know that they'll pay way more than they'll get back.

But I'm curious, would you be wiling to sail for that deal? I'd also be for a provision that you can't discharge these sorts of debts in bankruptcy. Would you agree to that?

[Texas Contrarian]

Originally Posted by TexTushHog

If your question is "Are some venues better than others for some parties?" the answer is "Hell yes!" And as a Plaintiffs' lawyer one of my jobs is to find the absolute best and most Plaintiff venue that I can for any given claim among those places the law allows me to file my claim.

And Dallas County, despite what you may have heard, is typically not near the top of any such list. It's a lot better than it used to be, but it's still not good. I'd say it's a moderately poor to fair Plaintiff's County, although it's not bad for the N. Texas area. It's especially bad in low damages, marginal liability cases. It's still got enough white collar folks that if you have a high damages, great liability case, you can get some blue collar folks who are generally Plaintiff friendly if you can cut the younger white blue collars, and still get a decent moderate white collar that can add and multiply for damages. Hopefully, you'll have one blue collar and one white collar moderate leader candidate (maybe a teacher) than can bond and lead the jury. But it's far from a good county.

Concerning Dallas County, I've heard the opposite from a couple of lawyers friendly to the defense side. They told me they much prefer almost any other North Texas county. But, of course, a lot of subjectivity may creep in here, or it may just depend on exactly what type of case is at issue.

Originally Posted by TexTushHog

One question: If I sue you and win, are you going to pay my 40% or pay my fees in the case at $600/hr. (the rate I get on those rare occasions when I work by the hour)? If so, we've got a deal. I've tried somewhere just this side of 150 or 200 cases to verdict and lost 3 - 5, depending on how you define "lost" ($0 verdict versus getting a verdict that was less than the last offer).

Also, what about litigation expenses? Experts witnesses, depositions, copies, travel? Are you willing to throw those into the looser pays pool? I am if it's a two way street. I have an average of about $75 - $100k in my major suits.

Every time the Plaintiffs' bar says, OK, let's do it if it goes both ways, the insurance industry goes ape shit and pulls back. And the reason is that they know that they'll pay way more than they'll get back.

But I'm curious, would you be wiling to sail for that deal? I'd also be for a provision that you can't discharge these sorts of debts in bankruptcy. Would you agree to that?

As far as I'm concerned it's a deal, as long as said expenses are documentable. I was under the impression that the plaintiff typically goes after attorneys' fees anyway. If I recall correctly, plaintiffs' fees were sought in all the lawsuits we had to defend. Of course, they weren't recovered since nothing was recovered.

Frankly, I think the existence of such rules would have prevented most or virtually all of the suits targeting entities I've been connected with. They were essentially shakedown efforts for the most part, and I don't think the plaintiffs ever had any intention of taking them all the way to trial if we didn't cave early and settle for some reduced sum (which we didn't). If they knew they risked having to reimburse other parties for significant out-of-pocket costs, I doubt that they would have pulled the trigger.

TTH, judging from all your other posts, I don't believe you condone such tactics and believe that you eschew low-merit cases. But please recognize that they do exist.

[atlcomedy]

Originally Posted by CaptainMidnight

Concerning Dallas County, I've heard the opposite from a couple of lawyers friendly to the defense side. They told me they much prefer almost any other North Texas county. But, of course, a lot of subjectivity may creep in here, or it may just depend on exactly what type of case is at issue.



.

I don't know much about Texas juries and how favorable or not they are, but I think you are correct: as with most things a lot of subjectivity creeps in as well as one's personal experiences shapes their viewpoint.

Take our friend Charles for example...he lives in Texas but to read his posts you can't find a decent provider in the whole state...and everyone else seems to rave about the Texas ladies...

[onehitwonder]

Onehotmale, I'll call ya later on this evening........


Sorry for the interruption, Fellas

[TexTushHog]

Originally Posted by CaptainMidnight

Concerning Dallas County, I've heard the opposite from a couple of lawyers friendly to the defense side. They told me they much prefer almost any other North Texas county. But, of course, a lot of subjectivity may creep in here, or it may just depend on exactly what type of case is at issue.



As far as I'm concerned it's a deal, as long as said expenses are documentable. I was under the impression that the plaintiff typically goes after attorneys' fees anyway. If I recall correctly, plaintiffs' fees were sought in all the lawsuits we had to defend. Of course, they weren't recovered since nothing was recovered.

Frankly, I think the existence of such rules would have prevented most or virtually all of the suits targeting entities I've been connected with. They were essentially shakedown efforts for the most part, and I don't think the plaintiffs ever had any intention of taking them all the way to trial if we didn't cave early and settle for some reduced sum (which we didn't). If they knew they risked having to reimburse other parties for significant out-of-pocket costs, I doubt that they would have pulled the trigger.

TTH, judging from all your other posts, I don't believe you condone such tactics and believe that you eschew low-merit cases. But please recognize that they do exist.

Among N. Texas counties, Dallas is probably one of the better counties. But it's a horrible area of the State for Plaintiff's cases. Compare Dallas to some deep NE Texas or SE Texas counties and it's a Defendant's paradise.

In breach of contract cases, at least in Texas, you can recover attorneys' fees. However, in a personal injury case, you cannot. So having looser pays would be a huge boon to the plaintiffs bar. Especially since most of our clients are judgment proof. Once somebody is seriously injured and they loose their job, what difference does it make if you get a judgment against them for $75k worth of attorneys' fees. They've lost their job. They'll soon enough loose their house, etc. They're fucked anyway.

[Whirlaway]

TTH:

Does the Texas bar favor "loser pays" rules?

Does the Texas Plaintiff's attorneys association (whatever umbrella name they operate under) favor loser pays rules?

[charlestudor2005]

For those of you who think there is a lot of lawsuit abuse out there, the following excerpt from a law review article in the St. Mary's Law Journal appeared:

5. Lawsuit Abuse
While it is not the trial courts that cause “lawsuit abuse,” there is a perception that “lawsuit abuse” is not addressed by trial courts and is thus enabled by trial courts. Such is not the case, but perceptions persist. The truth is, however, that “lawsuit abuse” criticisms are seldom on target. Here is a response to those concerns by Randy Howry, president of the Austin Bar Association, involving, of all things, baseball. Since Mr. Howry’s piece cannot be improved upon, I will cite it in its entirety:
In his March 21[, 2006] op-ed piece, “Striking out lawsuit abuse,” Jay Miller, the president of the Round Rock Express baseball team, claims that many lawsuits are filed by spectators injured at ballparks every year resulting in large payouts by team owners. He maintains that baseball fans are “looking for every opportunity to hit a grand slam jackpot at the expense of the team or even its players.”
Those of us interested in addressing the myths of tort reform have one question, “Where in the world are you being sued?”
Although we apologize for striking out a good fantasy with the truth, a decent respect for the dignity of the rule of law requires that your readers know the following: a search of the district clerk’s records in Williamson County reflects that neither the Round Rock Express nor its owners have ever been sued for any reason, certainly not for spectator injury, in the five years the team has called Round Rock home. Not once. Ever.
But let’s go further: try “Googling” for baseball-related
lawsuits. You’ll get about a dozen across the country covering decades, almost all related to contract disputes or other business- related matters. Miller himself could only cite three examples from across the nation, years removed, and more importantly, he did not reveal outcomes. Most states even have laws that protect teams from lawsuits related to known consequences of attending sporting events.
So why would Miller profess such fear? Why insult his good and generous fans? The answer to that question is found in the small print at the very end of his op-ed piece. Miller is a member of the board of directors of Citizens Against Lawsuit Abuse of Central Texas.
Over the past few years, it has become real sport for organizations such as this to demonize lawyers and lawsuits. Blaming lawyers and lawsuits for all of society’s ills is fun and comfortable for folks, like Miller, who do not feel the need to research the facts. These so-called “tort reformers” are quick to throw out phrases such as, “Frivolous lawsuits are clogging the courthouse” or, “Out-of-control jurors award too much money.”
The truth is that over the past decade, there has been a 50 percent reduction in the number of non-family-law cases filed, and the monetary awards, reflected in jury verdicts, have steadily decreased during that same period. This downward trend began well before the “tort reformers” began their reforms.
No doubt, there are occasions when juries make bad decisions. Those are the ones you read about in newspapers and magazines. But it does not happen nearly as often as some would have you believe. And, the anti-lawsuit crowd never wants to discuss the checks and balances built into the legal system to protect against run-away jury verdicts: motions to sanction frivolous filings, the ability of trial judges to enter judgments regardless of jury verdicts and the right of appellate courts to review jury verdicts and overturn them and reduce jury awards if justified.
Miller writes, “. . . the game of baseball is played with bats and balls. The rules of the game have been in place for more than 100 years.” True, and it is the longevity of the game of baseball that makes it so special. And Miller knows that, for more than 100 years, the legal rule has been that being hit by a foul ball or home run in the ball park is expected and foreseeable and not the proper subject of a lawsuit.
Likewise, the jury system has been part of the American
democratic process for more than 200 years. Properly constrained
by rules of evidence and procedure, it has served us very well.
829
There never seems to be public outcry when ordinary citizens, who serve as jurors, are asked to determine whether a criminal defendant should live or die. But when asked to determine the culpability of a defendant in a civil case involving monetary damages, these same ordinary citizens are suddenly rendered incapable of making such a decision.
Can our system of justice be improved? Certainly, but there can be no dispute that lawyers and lawsuits have made significant contributions to society during that period. Dangerous products have been improved or eliminated, civil rights have been established, and polluters have been punished. Creating false impressions about frivolous lawsuits does every citizen a disservice.
So, Mr. Miller, with all due respect, don’t pitch that stuff unless you have all the facts. With daily news reports about gambling by players and coaches, exorbitant players’ salaries and performance- enhancing drugs, it’s hard to believe that “frivolous lawsuits” are baseball’s biggest problem.9 8
Mr. Howry’s op-ed piece about the lack of frivolous lawsuits in Texas has additional support in a recent survey conducted for the Baylor Law Review, where Texas state judges were asked about frivolous lawsuits. Over 86% of the responding judges believed that there was no need to address frivolous lawsuits legislatively.9 9 Almost half—44%—had not observed a single frivolous lawsuit during the previous four years.100 Over 65% of Texas judges had not imposed a single sanction under Rule 13 of the Texas Rules of Civil Procedure or chapters 9, 10, or 11 of the Texas Civil Practice and Remedies Code for bringing frivolous claims; another roughly 20% had imposed only a single sanction.101 This shows that frivolous lawsuits are not a frequent problem, and when they are filed, adequate tools already exist to deal with them short of curtailing jury access.
And finally, the President’s Opinion Column, written by Guy
Harrison in February 2003 for the Texas Bar Journal when he was
president of the State Bar of Texas, is certainly on point:
The e-mail was from a non-lawyer friend of mine, whose habit it is to remind me of his, if not the public’s, perception of my chosen profession. The subject line declared, “The Stella Awards.”
“The Stella Awards” is a reference to Stella Liebeck, the woman awarded damages against McDonalds for burns suffered from scalding coffee. The principal case reported this year was a man who set his Winnebago on cruise control, got up to get a cup of coffee, and crashed because there was no warning that a driver should stay in control of the vehicle. Reportedly, he was to receive $1.75 million. Other mentions were given to an Austin woman, who tripped over her misbehaving toddler in a furniture store and received $780,000, and a man in Los Angeles who was awarded money when a car he was stealing ran over his hand.
Deleting the [e-mail] without responding, in retrospect, may have given credence to the stories or belied a careless attitude toward my perception of my chosen profession. Were any of the stories true, as reported, there indeed was a need for reform. Were they false, allowing the perception that they be true was a failing.
... .
What I should have done was investigate, perhaps visit Snopes.com, which, I am told, checks out “urban myths,” or at least I could have called a lawyer in Austin to check out the Texas case. Had I done so, I would have learned that there was only one thing wrong with the above cited matters—none of them ever happened.
So why report this in this space? Because we as lawyers have a duty to defend our profession when it is in need of defense and a like duty to be informed on shortcomings in an effort to help change the system for the good. If it be proven frivolous lawsuits are a problem, if there is rampant forum shopping in violation of rules of procedure, if there are changes that will improve the system, to not acknowledge them is to allow only one side to be heard in the debate. Hand in glove with our duty to be informed regarding needed changes is our duty to defend ill informed calls that change be made for change’s sake.
... .
As John Adams put it so much clearer than I: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of the facts
and evidence.” Unfortunately, the silence of the profession and those of us as individual lawyers, create scenarios whereby the fancies put forth become the facts if we do not speak up. That’s not an opinion, that’s a fact.1 0 2 [Footnotes omitted.]

[TexTushHog]

Originally Posted by Whirlaway

TTH:

Does the Texas bar favor "loser pays" rules?

Does the Texas Plaintiff's attorneys association (whatever umbrella name they operate under) favor loser pays rules?

Texas Bar Association represents all lawyers in the State and typically doesn't take a position on politically controversial issues.

The Texas Trial Lawyers Association represents the Plaintiffs' bar and does often take positions on controversial and partisan issues. They have never supported a looser pay bill, at least in the past ten years, because no "two way" looser pay bill have been proposed. And of course the reason none has been proposed is that the insurance industry doesn't want one. I can tell you from my personal experience, however, that the organization would be split on the a looser pay statute that was fair and went both ways. but I think more would favor it than oppose it.

Lawyers in larger cities who have clients who have more assets would probably be afraid it would chill their business somewhat. Lawyers from poorer areas of the State (which happen to also be where the better counties are located) would probably be in favor of it for two reasons. First, their Plaintiff would be mostly judgment proof, so getting stuck for a judgment for attorneys' fees would be meaningless. Second, they win a hell of a lot more than they loose.

But ultimately we all win a hell of a lot more than we loose, or we're out of business in short order, so I suspect we'd get over the division and be in favor of it.

However, there will be wails of outrage from the employment bar and the civil rights bar. (No personal injury lawyers do these cases because 1) there is no money in them; and 2) they are too hard to win because of bad law. But, because we are ideologically sympathetic to these groups, we would be very hesitant to throw them into the fire. These are the folks who would suffer under this sort of rule, along with the likes of Allsnakes, State Fuckin' Farm, Fred Loya, etc.

Also you have interesting issues of how you determine how is the "looser", especially in family law litigation.

[Whirlaway]

Originally Posted by TexTushHog

Also you have interesting issues of how you determine how is the "looser", especially in family law litigation.

TTH: thanks for a reply. To your question, I am a firm believer that one size doesn't fit all so I would think that a single rule for all litigation isn't the solution. Maybe you expempt family litigation from a loser pays format? Also I would exempt small claims litigation. Maybe loser pays applies only to cases that are in excess of $350,000 in legal fees (each side)?

But I definetly would have it apply in class actions, contigency fee cases, medical malpraictice cases, financial fruad, consumer and trade practices, and most other cases in which plaintiff and defendent parties are private - i.e. exclude government actions in criminal cases, SEC, and alike.

And don't courts (especially in lawsuits) allocate percentage of cause (i.e. the percentage that a party is guilty of contributing to the conduct)? That could be the basis for allocation?

But in the big picture I don't think this issue should be resolved by the lawyers associations. It is a consumer issue and needs wider discussion of the issues beyond the trial lawyers and others.

[Whirlaway]

TTH:

Can you please explain this "judgement proof" thing?

Under the current system, as a defense attorney, if you take on a "judgement proof" client, the client is paying you at going rates, then presumably the client has resources. If you are taking the case on contigency, and you lose then you are out your time.

In a loser pays system, the client and attorney (law firm) would be financially responsible for the legal fees of the prevailing party.