Law Suits and Popular Ignorance

[Chevalier]

Originally Posted by Mazomaniac

The settlement process is, once again, nothing more than a free-market way of deciding what a claim is worth.

Originally Posted by TexTushHog

If a lawsuit passes muster from a judge on summary judgment . . . . Do frivolous lawsuits exist? Sure. In very small number and they are almost always disposed of on summary judgment of by voluntary dismissal.

A bit over-simplified, because: (1) the judicial system imposes substantial costs; and (2) it's not only frivolous lawsuits, there is the problem of inflated claims with enough merit to survive a motion for summary judgment.

If the claim (weighted for probability of success) is worth $X, the defendant may be forced to settle for more, to avoid the costs of going to trial. You can affect that to some degree if the losing party has to pay the costs of the other side. You can also limit completely frivolous lawsuits by allowing a streamlined procedure for summary judgment at an early stage. Of course, even that imposes some costs on the defendant, and it doesn't address lawsuits that are not completely frivolous; if the claim is "worth" $25,000 but the other party refuses to settle for less than $200,000, and it will cost you $400,000 to defend, what will you do?

Not to mention that what a claim is "worth" is completely hypothetical. An outside, objective party might evaluate it at $750,000, while another outside, objective party might evaluate it at $3,000,000, and another might evaluate it at $120,000. What will the jury decide? How much can you remove subjectivity and bias in jury selection?

The costs and the "jury crap shoot," of course, affect both plaintiffs and defendants adversely. And most partisans on either side of this debate only acknowledge the costs that hurt their side (or their own personal interests if they're attorneys).

Those who sympathize with plaintiffs see the possibility that a plaintiff will not be able to afford to bring a meritorious lawsuit or forced to take a low-ball settlement offer. And if they're plaintiff's attorneys, those are the very type of bad results that they're most likely to see. Defense attorneys are less likely to encounter those situations.

Those who sympathize with defendants see the possibility that a defendant will be unjustly sued (and still incur costs even if able to win on a motion for summary judgment) or forced by litigation costs to settle a meritorious but low-value lawsuit for more than it's worth. And if they're defense attorneys, those are the very type of bad results that they're most likely to see. Plaintiff's attorneys are less likely to encounter those situations.

Personally, I believe that it was appropriate a few years back to restrict class-action stockholder lawsuits, because there were firms set up specifically to file suit automatically anytime that stock prices for a company dropped, and defendants routinely and quickly settled because of the huge potential exposure. (And often class-action lawsuits wind up with very trivial recovery for the stockholders when compared to the fees received by the attorneys.) And I think some other class-action lawsuits have gone way too far, destroying defendants through very questionable science that is later debunked -- e.g., breast implants -- or by chasing the line of causation too far (and even blatant coaching of the plaintiffs) in search of deep pockets -- e.g., some asbestos claims. Clearly abusive situations. At the same time, yes, without the possibility of class-action lawsuits, some wrong-doing could never be reached because it is too expensive to do so on a case-by-case basis.

Those are the types of situation that inflames most of the passion concerning this argument. Everyone argues the extreme cases. As far the the run-of-the-mill, single plaintiff cases like medical malpractice or auto collisions discussed above -- I have no idea. I don't see those often from either side.

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Any change in the rules is not per se "unfair." It depends largely on how you view the pre-change balance of power. Do defendants have an advantage, due to greater financial resources or bias by judges? Do plaintiffs have an advantage, from the ability to bring the lawsuit in the first place (imposing costs on the defendant) or bias by juries?

I think any fair evaluation of the justice system would conclude that -- even if there's nothing better to replace it with -- it doesn't work very well for either side. Too many meritorious claims that are never given their day in court or receive judgment lower than warranted by the actual merit of the claim. Too many low-merit claims that receive a higher settlement or judgment than warranted by the actual merit of the claim. And for everything in between, too much cost imposed by the system.

The justice system mis-serves, to one degree or another, everyone, plaintiffs and defendants. That is, everyone other than the lawyers. Our only real justification for our involvement is that the lousy system would work even worse without us.

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Technically, I'm a plaintiff's attorney although that's just an artifact of a built-in administrative advantage by the other side; effectively, I'm equivalent to a defense attorney. I've seen several instances where my clients were forced to settle even though we had good arguments. When the amount at issue is $600,000, even with a 65% chance of success, we may have to accept 25% instead of 65% simply because it would cost $500,000 to go to trial. Unfortunately I don't encounter the opposite, where we get an advantageous settlement because the other side wants to avoid litigation costs. Alas, my opponents don't consider it from an economic standpoint - or else are considering the benefit by going to court of intimidating hundreds of other similarly situated claimants.

So, I may be biased in a discussion like this. But then, so are most of the others who participate.

[pjorourke]

Originally Posted by Naomi4u

I did not know that. Thanks Charles!

Except that he is wrong. (Facts aren't Chuck's thing. )

Per Wikipedia: "In some jurisdictions, the first step of jury selection is composing a jury pool (also a "venire"). This is a panel selected for jury dutyjurors are to be chosen. A common method for drafting jurors is to draw them at random from electoral rolls (known as allotment or sortition), lists of licensed drivers, or other broad-based lists of residents in the community (e.g., tax rolls, public utility consumers). Increasingly, courts combine multiple lists to compile the master jury list. In the U.S., the most common combination of source-lists is registered voters and licensed drivers — employed in 19 states" and from whom

[Texas Contrarian]

Chevalier, thanks for that reasoned and very excellent post pointing up some of the concerns held by those on both sides of the issue.

I am obviously sympathetic to the defendant's side, but my feelings are borne of personal experience. On several occasions I have been sued over contract issues of one kind or another. In each case, I don't think a reasonable person would find that the suit had any merit whatsoever. Also in each case, perhaps the plaintiff's lawyer (at least somewhat) agreed, since no one seemed to have an appetite for pressing forward after encountering stiff resistance. I saw these tactics as simply a sleazy, aggressive form of attempting to retrade deals, and didn't appreciate them very much since they cost me a fair amount in attorneys' fees.

Additionally, I along with numerous partners have owned a number of properties over the years, and from time to time rapes, robberies, and other crimes have occurred on the premises. It seems that some people feel that the property owners should always bear some responsibilty, no matter the facts. One plaintiff's attorney even tried to make capital of the fact that our complex didn't have armed guards roaming all areas of the property 24/7/365 (he was unsuccessful, fortunately). The simple fact is that no property of that type (typical 2-story apartment complex spread out over 15 acres or so) can possibly afford to employ such high-level security services and hope to remain remotely competitive.

I just believe that unless there's the notable existence of some form of negligence on the part of the property owner, in such cases blame should be considered solely attributable to the criminal.

[charlestudor2005]

Originally Posted by pjorourke

Except that he is wrong. (Facts aren't Chuck's thing. )

Per Wikipedia: "In some jurisdictions, the first step of jury selection is composing a jury pool (also a "venire"). This is a panel selected for jury dutyjurors are to be chosen. A common method for drafting jurors is to draw them at random from electoral rolls (known as allotment or sortition), lists of licensed drivers, or other broad-based lists of residents in the community (e.g., tax rolls, public utility consumers). Increasingly, courts combine multiple lists to compile the master jury list. In the U.S., the most common combination of source-lists is registered voters and licensed drivers — employed in 19 states" and from whom

The problem Wikipedia is that any idiot can make an entry. The legal problem with some of those lists is as follows:

• licensed drivers: automatically excludes persons who are disabled and cannot legally hold a driver's license, or people who are so poor they don't own cars so they have no desire to have one;
• tax rolls: also geared toward the rich. Only property owners on this one. There are no lists of people who pay sales taxes.
• PUC consumers: again, not everyone is eligible. In a household, the account will be in only one name (sometimes the landlord's), while other people in the home eligible for jury service are left off the account.

It's been a while since I studied this, but I recall that courts were routinely striking down some of these lists as not being expansive enough and gearing jury panels so that some spectrum of the population was excluded.

The acceptability of eligible voters is that anyone can register.

[pjorourke]

But the point my thickheaded foil is that if you own a home, drive a car, consume utilities OR register to vote, you are going to be in the jury pool, depending on the rules used in your jurisdiction. So just getting off the voting rolls ain't gonna do it.

I suggest a refresher course in Boolean logic.

[Vercengetorix]

"I can't watch it again, since I didn't watch it in the first place". So you made up your mind without watching it at all? That pretty much says everything about you, doesn't it?

People who refuse to even listen to the other side of an issue can't be reasoned with. That's why people like you always "will agree to disagree and move on" rather than thinking something through and running the risk of learning something you don't know. Or do you already know everything there is to know about litigation?

I have been on both sides of the docket and have found people think they know a lot more about the legal system than they actually do. The sad thing is, the most biased typically have no desire to actually know better. That is true on both sides, not just people looking for a payday but those who claim anytime they are sued "it's frivolous".

[I B Hankering]

@ Mazo, Charles and TTH

I feel as though I’ve been voir dire’d up the wazoo, and it’s all been a disconcerting, expensive farce.

When I was summarily dismissed the second time, I began to understand that I would never be selected simply because I had worn this country’s uniform. I grew up believing it was my civic duty to serve if called upon to do so, but I was soon disillusioned by the charade of the jury selection process.

Fundamentally, my point is that any formal law that prescribed a selection process such as the one y’all practice and endorse would immediately be declared unconstitutional.

Because there is no such law, I was called to report for a third time. Imagine my elation! And, there is a high probability that I’ll again be summoned one – two, maybe three more times (as a voting, property-owning, non-incarcerated, taxpaying citizen in this community) before the end of my days. Oh, what joy!

Originally Posted by pjorourke

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

The real kicker PJ is that you still get summoned, and if you don't show you will be arrested and fined.

@ Naomi4U – Not registering to vote, choosing not to apply for a driver's license and changing residence every six months or so might keep one out of jury duty – LOL. Where I live, prospective jurors are treated miserably—like cattle. There's not enough parking, not enough chairs for seating (other options include, standing, musical chairs or sitting on the floor—to be tread upon by the "power-walkers" who use this wasted moment in their life to exercise) and inadequate air conditioning for the mass of humanity they pack into the rooms. Plus, the stipend usually won’t cover the cost of a lunch meal at a downtown restaurant and the cost of gas for the commute. Oh, and Uncle Sam also wants his part of the stipend.

[Vercengetorix]

@woodyboyd

I won't go over the many inaccuracies in your comments which have already been pointed out but I do want to comment on something things.
First, I defend people like you. Second, you need to ask your lawyer some questions because your understanding of the system is seriously flawed if you have been in suits like you describe and you lack a basic understanding of how the system works. Third, in Texas a great many cases which are filed that don't have merit are dismissed under the requirement of securing an appropriate medical report from a properly qualified expert. EVERY FRIVOLOUS CASE, OR EVEN HIGHLY QUESTIONABLE CASE, I HAVE DEFENDED HAS BEEN DISMISSED AT THIS STAGE. Contrary to bullshit opinion, it's hard for plaintiff's attorneys to get properly qualified experts to dump on their brothers in medicine. In Texas, when the case is dismissed at this point, which happens all the damn time, DEFENDANT IS AWARDED THEIR COSTS BY STATUTE. IT'S MANDATORY IN TEXAS. Many a plaintiffs lawyer has learned this and written a check for this reason. That check goes right to the physician's insurance carrier or the hospital being sued. If you paid your own attorney's bills rather than use your liability insurance, then the check would go to you. If the plaintiff attorney is able to get a properly qualified expert, that meets the requirements under the statute and drafts an appropriate affidavit, the case proceeds. It doesn't mean the plaintiff wins, just that the case can proceed. It is, at that stage, NOT FRIVOLOUS. You may disagree with the other doctor but it isn't frivolous by definition.
Med mal reform in Texas, which has been in place for years now, already has a partial loser pays provision and it is enforced all the time. LOOK AT THE APPELLATE COURT DECISIONS IF YOU DON'T BELIEVE ME.
I don't sue people for a living, I defend them, but I get awful sick of the disinformation I hear all the time.

[Vercengetorix]

I try cases in Texas and I have had soldiers, policemen, firemen, border patrol agents, etc on juries for cases I have tried. I do civil, not criminal, but not all soldiers are stricken. Keep showing up for jury duty.

[Chevalier]

Originally Posted by Vercengetorix

If the plaintiff attorney is able to get a properly qualified expert, that meets the requirements under the statute and drafts an appropriate affidavit, the case proceeds. It doesn't mean the plaintiff wins, just that the case can proceed. It is, at that stage, NOT FRIVOLOUS. You may disagree with the other doctor but it isn't frivolous by definition.

I think, rather than using a loaded term "not frivolous" along with "by definition," it would be better to simply say that lawmakers have agreed that the complaint meets the requirements for going forward. I think it would be a stretch even to say that lawmakers have agree that it meets a minimum threshold of merit -- it's more likely that they've concluded that the requirements are a relatively easy to apply test and there is some connection, although short of absolute correlation, between "meets the requirements" and "not frivolous." It's a way of filtering out some complaints, but can't effectively do that for all complaints that should not have been filed in the first place. No bright-line rule can.

Of course, you apparently have expertise in the particular area of med-mal and I don't. My skepticism and cynicism about expert reports, by either side not just a plaintiff, arises primarily by analogy to my area of expertise. Because in that area, going back 5 - 15 years, there was a virtual epidemic of flawed, results-oriented, specious opining by experts, including at a large number of prominent and extremely well-regarded law firms and CPA firms. Looking back on it now, it's almost incomprehensible. Why did they do it? Competitive pressures and wanting to earn a (good) living ("if we don't give the client the opinion he wants, he'll just go elsewhere").

Maybe those who are qualified to give such reports in med-mal are more ethical. You're obviously in a better position to evaluate that than I am. But I am skeptical/cynical about expert reports in general. Or perhaps it's just that I am skeptical/cynical about human nature in general.

[Randy4Candy]

(as the announcer in "Rocky and Bullwinkle" would interject) Don't Confuse Me with the Facts Because History Was Boring - AND - Who Could Possible Be Interested in That Stuff Anyhow.....

It is silly, nonsensical and indicative of how deep and broad the denial is to counter every argument (from either side) with statements that boil down to meaning "there's always an exception or two or a case when things don't work out perfectly (hell, or even half way) therefore everything is f*ck*d up and we should scrap it all." Either arguing with or ridiculing (the latter being much more fun) those who must finally resort to that final, last-ditch "rationale" as if the twisted logic of it is a glowing gem of brilliant deduction makes about as much sense as self-mutilation.

All that means is that those "aginners" have it totally covered, in their minds, and in their evangelical fervor they are out to convert or shout down anyone in an effort to "enlighten." And to TTH, Mazo and a couple of others who actually do legal work and have honest-to-goodness real life experience in these matters, wtf's up with you guys attempting to educate and explain. Hell, the Defenders of All That Is True and Wonderful already have made up their minds, display a reluctance to either cede a micro-millimeter or entertain any view not in lock step with their outlook. I guess we all just need to continue to regress back in time to the good old days (that never were). Shucks, maybe ol' Rupert's got us a nice place reserved in the Outback.

[atlcomedy]

It cracks me up that when PJ calls Chuckie out for being incorrect (about how jury pools are selected), instead of acknowledging he was wrong, Chuckie picks on PJ's source (Wiki)

[woodyboyd]

Originally Posted by Vercengetorix

I won't go over the many inaccuracies in your comments which have already been pointed out but I do want to comment on something things.
First, I defend people like you.

No, you don't. You are paid by insurance companies and defend them. Like every other person on the planet, you are loyal to who pays your bills. I have been screwed as badly by defense attorneys, if not worse, than by plaintiff attorneys. If there weren't med mal plaintiff attorneys, you wouldn't have a job.

Originally Posted by Vercengetorix

Second, you need to ask your lawyer some questions because your understanding of the system is seriously flawed if you have been in suits like you describe and you lack a basic understanding of how the system works.

My attorney didn't even know the statue of limitations clause. I also asked a family member who didn't know the law. He then asked an associate who didn't know. So this idea that I don't know the law quite frankly is pretty insulting.

There are three criteria involved that apply to the statue of limitations. Do you know what they are? Do you know what the Texas Supreme court said about the order in which they apply? If you do, then you would be the first one.

I have been in cases where judges wantonly don't follow legal precedents and IMO their decision making is more based on political calculation rather than the law. As you know, one of the stupid aspects of our legal system is that who the judge is has a lot more to do with a decision than what the law is.

But given the abject stupidity of the plaintiff and her expert (submitting falsified medical opinions, filing the case late, changing the allegations again and again), and the case was actually filed in a competent judge's court, the chances this case are dismissed is way more than 50%.

Originally Posted by Vercengetorix

Contrary to bullshit opinion, it's hard for plaintiff's attorneys to get properly qualified experts to dump on their brothers in medicine.

This is such bullshit!! The female attorney in this case filed at the last possible moment. In my opinion, she even filed this case late and didn't even have a medical opinion to back her up claims when she filed. The allegations, as I previously have stated, were so absurd that they have since been changed. Contrary to your statement that it is so hard to find a doctor, she found one in the state of Texas to back these ridiculous and now changed allegations and found another doctor in another state. The only proof you attorneys have of it being hard to find doctors to testify as plantiff's experts is your saying so.

Originally Posted by Vercengetorix

In Texas, when the case is dismissed at this point, which happens all the damn time, DEFENDANT IS AWARDED THEIR COSTS BY STATUTE. IT'S MANDATORY IN TEXAS. Many a plaintiffs lawyer has learned this and written a check for this reason. That check goes right to the physician's insurance carrier or the hospital being sued.

If true and that is enforced, that is great to know. Now I all have to do is fix this asshole of an expert witness.

Originally Posted by Vercengetorix

You may disagree with the other doctor but it isn't frivolous by definition.

You have completely missed the point. The expert's spoken opinion is in conflict with his written one. He has admitted to lying about what the standard of care is. IOW, he is disagreeing with himself.

Charles Tudor has repeated what my family member lawyer hinted to me about medical experts: that they are protected from lawsuits because what they say is privileged. Fine, I will get him some other way.

This whole idea of privilege is nauseating to me. This medical expert lied, and he had financial incentive to lie. The notion that he needs to be protected because I might seek retribution is so stupid it makes me sick. What if, like in this case, he deserves retribution?

And for everyone thinking "let it go, Woody", my response is this. I have let it go, allowing people to lie in the past and leaving the punishment in God's hands. I promised myself if anyone lied about me again like this, I wouldn't let it go. This isn't about me. When lying is the rule rather than the exception, I think it is my civic duty to step in and try to fix things.

[Mazomaniac]

Originally Posted by Randy4Candy

And to TTH, Mazo and a couple of others who actually do legal work and have honest-to-goodness real life experience in these matters, wtf's up with you guys attempting to educate and explain.

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.

[Texas Contrarian]

Originally Posted by Vercengetorix

"I can't watch it again, since I didn't watch it in the first place". So you made up your mind without watching it at all? That pretty much says everything about you, doesn't it?

People who refuse to even listen to the other side of an issue can't be reasoned with. That's why people like you always "will agree to disagree and move on" rather than thinking something through and running the risk of learning something you don't know. Or do you already know everything there is to know about litigation?

I have been on both sides of the docket and have found people think they know a lot more about the legal system than they actually do. The sad thing is, the most biased typically have no desire to actually know better. That is true on both sides, not just people looking for a payday but those who claim anytime they are sued "it's frivolous".

Since those arrows were obviously aimed at me, I'll respond:

As I said before, the video is a biased piece of polemics. Not only that, it's boring. (I'm not the only one who said that.) You only need to watch the first couple of minutes to realize that. Since when does someone need to watch stuff like that to have an informed point of view on a subject? You insinuated that I "don't listen to" the other side of an argument. You don't know that. In fact, I have read a large number of opinions on the issue -- from both sides -- over the years. I have listened. And I am actually sympathetic with some of the arguments made by Tex Tush Hog and others. But frankly, I've found many of them wanting. So before launching ad hominem attacks based on a (false) assumption that I haven't listened to the other side, don't you think it might be a good idea to actually find out whether that's the case? You're a lawyer, for crying out loud. I would think you'd know better than that!

And, no, I certainly don't think I "know everything about litigation", as you insinuated. I am not even a lawyer.

But I do know a couple of things:

We've become a society where a growing number of people feel entitled. A lot of people seem to think that some rich company ought to pay them for almost any imagined act of wrongdoing, no matter the facts. In fact, more and more people feel that society somehow owes them a living. Sadly, it's as though we're slowly turning into a giant Greece. I think entitlement sentiments enable the threat of lawsuits to encourage defendents to settle rather than risk outsized judgments, at least in some types of cases and in some urban jurisdictions. But I also think this is more of a societal problem than a legal problem.

Also, as I stated earlier, I and entities I've managed or controlled have been targeted by plaintiffs' lawyers dozens of times over the last twenty years or so. Perhaps one can argue over whether any particular case was "frivolous", but we never lost or unfavorably settled a suit. Frankly, I think virtually all of them had limited merit or were simply shakedown attempts. So, yes, maybe I'm a little biased, but I've had to spend a lot of money defending myself and partners from what I considered unmerited or unethical actions.

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.

I don't believe for a minute that such a rule would deny courtroom access to anyone with a solid case. The plaintiff's attorney would still invest resources in a strong case with the possibility of a big payday. And if there's little chance of a big payday, doesn't that mean the case has little merit?