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re: Make an argument against a "loser pays" judicial system
Posted on 7/27/14 at 5:50 pm to lsusaintsfan4life
Posted on 7/27/14 at 5:50 pm to lsusaintsfan4life
quote:
How about we limit the % contingency fee that lawyers extract from clients in cases of med mal? Why should the attorney receive money that is needed for future medical care?
they do that in comp. you'd have to possibly create an entire regulatory scheme, like comp, though
1
Posted on 7/27/14 at 5:52 pm to SlowFlowPro
You are a good one Slow 
Posted on 7/27/14 at 5:53 pm to SlowFlowPro
quote:
the vast majority of cases that lawyers take involve pretty clear liability, though. this would lead to more litigation (because you're incentivizing filing suit by increasing recovery in cases of clear liability)
i mean i can ask this again in a slightly different way. let's say you were hit from behind while in a car by another car (aka, 100% clear liability). why would you NOT tell your lawyer to sue and take the case to trial (assuming you could live without the money in the mean time)?
That brings up a good scenario.
A rapper is in town for Essence Fest and rear-ends you at a red light. You sue, he hires some Johnnie Cochran type. The lawyer uses the Chewbacca defense and plays the race card. Racist jury finds for the rapper in spite of the clear-cut facts. Victim is already out medical bills, lost wages, and the damage to the car and now is on the hook for some high-priced lawyer's fees.
I hate to put a racist scenario like that out there, but that's what is takes to get through to people who advocate a blanket loser pays.
Better option is to target frivolous appeals and plaintiffs/defendants who drag out a case. So if you reject a reasonable settlement offer and then lose, you're on the hook for the legal fees from the point the offer was made. Same for filing an appeal that doesn't result in a more favorable outcome (ie, verdict overturned or modified in your favor.)
Posted on 7/27/14 at 5:54 pm to lsusaintsfan4life
quote:
How about we limit the % contingency fee that lawyers extract from clients in cases of med mal? Why should the attorney receive money that is needed for future medical care?
Med mal cases are some of the most time consuming cases that attorneys deal with. If you limited a P's attorneys right to contract and recover, I'd expect the number of quality attorneys willing to take the case would plummet.
I've done defense med mal work before, and even I wouldn't support this. I'd hate to have to deal with inexperienced attorneys in the med mal world.
Posted on 7/27/14 at 5:55 pm to Bestbank Tiger
quote:
Better option is to target frivolous appeals and plaintiffs/defendants who drag out a case. So if you reject a reasonable settlement offer and then lose, you're on the hook for the legal fees from the point the offer was made. Same for filing an appeal that doesn't result in a more favorable outcome (ie, verdict overturned or modified in your favor.)
Isn't that the case already?
Posted on 7/27/14 at 5:58 pm to Bestbank Tiger
quote:
Better option is to target frivolous appeals and plaintiffs/defendants who drag out a case.
if you run it like the feds, with their pre-trial scheduling and difficulties in continuing trials, you put pressure on the lawyers. this actually would really frick a lot of lawyers on both sides who have taken on too many cases, and WOULD combat the churn firms somewhat
quote:
So if you reject a reasonable settlement offer and then lose, you're on the hook for the legal fees from the point the offer was made.
we do kind of have this in place with offers of judgments, just fwiw
Posted on 7/27/14 at 6:16 pm to Cosmo
This will tilt the system further towards corporate interests and away from the power and rights of the individual. I'm opposed.
I am not opposed to reforming our class action system and vigorously prosecuting fraud therein.
I am not opposed to reforming our class action system and vigorously prosecuting fraud therein.
Posted on 7/27/14 at 6:39 pm to Cosmo
I realize most of this board is of the mindset that business and industry is worth sacrificing values for, but I'm honestly taken back by how many believe that Joe Blow should be punished or bankrupted for daring to bring a legitimate civil suit against a large company with a legal team.
It would be EASY to shift billable hours from one case to another to manipulate the system, as well.
It would be EASY to shift billable hours from one case to another to manipulate the system, as well.
Posted on 7/27/14 at 6:44 pm to Cosmo
quote:
again, if it is a cut and dry legitimate lawsuit, I still think you will be able to find a lawyer to take your case on contingency and gamble that they won't lose
I can't think of any examples but there are a lot of cases that go to jury that the plaintiff loses. These cases aren't always frivolous sometime the opposing counsel just sways the jury.
You are not gonna find a lawyer on the contingency basis that he had to pay money if he loses.
It would lessen the amount of litigation. Whether that's a good thing or not is debatable.
I think the Loser pays system has it's advantages as we'll. but you didn't ask my opinion you said give the argument against
Posted on 7/27/14 at 7:06 pm to SlowFlowPro
This thread won't go anywhere unless people accept what the overall outcome of cases are or aren't.
If you believe or experienced Slow's world that most claims are only an issue for damages, then loser pays would be a terrible idea. Right now, the vast majority of claims don't make to trial for whatever reasons.
A plaintiff in Slow's world of loser pays has zero reason to not file suit and see it to the conclusion. This would raise defense costs. The argument of "marginal" cases isn't really in thay scenario.
If you don't believe the above occurs or isn't significant, then perhaps you'll have a different conclusion.
If you believe or experienced Slow's world that most claims are only an issue for damages, then loser pays would be a terrible idea. Right now, the vast majority of claims don't make to trial for whatever reasons.
A plaintiff in Slow's world of loser pays has zero reason to not file suit and see it to the conclusion. This would raise defense costs. The argument of "marginal" cases isn't really in thay scenario.
If you don't believe the above occurs or isn't significant, then perhaps you'll have a different conclusion.
This post was edited on 7/27/14 at 7:09 pm
Posted on 7/27/14 at 8:15 pm to Teddy Ruxpin
the issue, in all honest, is what exactly makes a claim "frivolous"
i think they are going on "liability" issues more than damages
i think they are going on "liability" issues more than damages
Posted on 7/27/14 at 11:37 pm to SlowFlowPro
quote:
So if you reject a reasonable settlement offer and then lose, you're on the hook for the legal fees from the point the offer was made. we do kind of have this in place with offers of judgments, just fwiw
I think you've done an excellent job explaining why loser pays is a bad idea, however, offers of judgment in federal court do not shift attorney's fees unless costs are defined to include attorney's fees, such as civil rights cases.
Posted on 7/27/14 at 11:54 pm to casualobserver
lol that's why i said "kind of"
Posted on 7/28/14 at 7:20 am to SlowFlowPro
quote:If a case is brought where care was provided appropriately (and that fact is clear from the outset), but outcome was terrible, is that a frivolous suit?
the issue, in all honest, is what exactly makes a claim "frivolous"
The answer is 100% yes, it's frivolous. Without question.
However, IAW line of reasoning in any legal article, journal, study and/or review I have ever read, such an action is not considered frivolous at all. In fact, according to most US personal injury types, it is considered an "opportunity".
Posted on 7/28/14 at 7:32 am to casualobserver
Problem with OOJs is if you get a "zero" against the other side, you cannot act on the OOJ.
Posted on 7/28/14 at 8:46 am to NC_Tigah
quote:
but outcome was terrible,
which part is "terrible"?
i've been in cases with great damages but iffy liability where the defendant got out via MSJ, and 1 case with no issue of liability where we got 0'd (well i wasn't there for the 0, but i heard about it).
Posted on 7/28/14 at 8:50 am to SammyTiger
Rule 11 of the Federal Rules of Civil Procedure, which most states have adopted, provides penalties for frivolous suits, including loser pays. However it seems to be little used by judges
Posted on 7/28/14 at 9:16 am to SlowFlowPro
quote:e.g., A patient is determined to have a home delivery assisted by a doula. She labors for 20 hours at home unsuccessfully with the doula compressing her abdomen to "assist" delivery. She finally decides to come to the hospital where a C-section is urgently performed. The infant is badly brain-damaged.
which part is "terrible"?
The patient hires a personal injury attorney. He in turn seeks his big money "opportunity" by going after the hospital and physicians instead of identifying the painfully obvious sources of fault: the doula . . . and the patient herself.
It is an obscene system.
Posted on 7/28/14 at 9:20 am to mattloc
quote:
Rule 11 of the Federal Rules of Civil Procedure, which most states have adopted, provides penalties for frivolous suits, including loser pays. However it seems to be little used by judges
Ding ding ding.
We don't need loser pays. We need judges who will not only dismiss frivolous suits quickly, but penalize those who bring them.
The "wrongful foreclosure" claims would be an excellent place to start. Obviously there are some states (Cali) where they've empowered these absurd claims, but they have a very low success rate in most of the country. The problem is that they'll linger on the docket for a year or two, judges will permit multiple contradictory amended complaints, etc. so it still takes a ton of resources to handle and defend them.
Posted on 7/28/14 at 3:24 pm to SlowFlowPro
Doesn't Europe use a loser pays system? If so, does anyone know how their judicial system operates compared to ours?
(I replied to Slow, but its really for anyone who would know).
(I replied to Slow, but its really for anyone who would know).
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