legal system irresponsable?

[briannell]

GL - so what's your take?


Legal system encourages irresponsibility - Wednesday, August 10, 2005


SUMMARY: Too many people seek to blame others for their mistakes. Too many lawyers help them do it.

It's only natural to feel compassion for someone who suffers an awful injury. Must we also feel responsible - even when it's the victim's own fault?

That's really the question involved in a lawsuit out of Great Falls that recently made the news. As the Associated Press reported recently, a young man from Washington is suing the University of Great Falls over injuries suffered while goofing around in a dormitory last year. The young man was participating in a water fight in a bathroom with fellow members of his wrestling team. He slipped and crashed backward through a window, falling three stories. He's lucky to be alive, but he suffered brain damage and now is described as mentally and physically impaired.



This is all bad. The only thing we can think of that would make it worse would be to hold someone other than those engaged in the water fight accountable. The lawsuit suggests the University of Great Falls is responsible.

As the Associated Press reports, the lawsuit contends the university "should have foreseen and anticipated that someone would slip on the floor, fall through the window and be seriously injured."

And you wonder why plastic bags from the dry cleaner carry a printed warning, "This bag is not a toy," and why packets of chemical desiccant packets are marked, "Do not eat."

Does anyone really believe that an educational institution for adults should make all windows too small to fall through, all surfaces capable of maintaining good traction during water fights and otherwise eliminate every possible risk of injury to everyone under every condition?

Of course not. The only real expectation in cases like this is that parading a seriously disabled young man through a courtroom will elicit such sympathy from jurors that they will - justice be damned - decide he must have help paying what must be large medical bills and be somehow compensated for his diminished prospects. Or, better yet, plaintiffs hope that the mere possibility that a jury could be charitable will induce the defendants to settle out of court.

Certainly, there are many, many accidents in this world in which the injured party is a true victim - harmed by someone else's actions or negligence. But there are too many lawsuits in which people who bring disaster upon themselves look to shift responsibility to others. Doing so may be simple human nature, but that doesn't make it right. This practice of blame-shifting, no doubt, flourishes in an environment overrun by lawyers willing to work on contingency - that is, collecting a large percentage of any damages awarded as their fee. These arrangements not only create a no-risk opportunity for plaintiffs to sue - what's the downside to them? - but it also effectively changes the lawyers' role from that of "officer of the court" compelled to seek justice to that of co-plaintiff driven by the profit motive.

If all of this merely shifted money to injured people from people, businesses and institutions who seemingly can afford to shoulder the burden, it would be bad enough. Heck, the world's full of injustice anyway; what's a little more? But the ultimate effect is to foster a culture of blame shifting where no one bears full - or, at times, any - responsibility for his or her actions. That can have no other effect than promoting irresponsibility. Irresponsibility generally winds up getting people hurt.
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[El_Gato]

Perfect example of "Jackpot Justice" in America today.

It amazes me that tort reform has never really taken hold as a legitimate political issue in America these days. I suppose that is partly because it's a bit too complicated for the "average" voter plus I suspect a significant # of Americans don't want to lose out on the ability to sue somebody (or ANYBODY) should a tragedy such as this happen to them or their family.

A fact that seems to get lost in too many American courtrooms these days is that it's simply impossible to "idiot-proof" our nation.

[SonomaCat]

Or, on the contrary, perhaps the "average" voter is easily sold on the idea that changes are necessary in the legal system due to highly publicized/sensationalized stories about silly lawsuits drawing large paydays for the litigants. This has been a campaign issue for many years now (the kind where nobody really intends to do anything about it, but know it will rally the voters and sounds good in stump speeches).

I think the problems arise when legislators try to sit down and craft up legislation that would prevent abusive cases, but would still allow the system to work for cases in which real damage is done to a person and accountability for the damage is truly just. Drawing those kinds of lines are very hard to do with legislation (and lawmakers have proven their inability to legislate fairness many times over).

It seems like, in the end, each case has to be looked at on a case by case basis, and that ultimately leads us back to relying on the courts to make the decisions that they were set up to make.

Don't get me wrong -- I am no fan of the knee-jerk litigious types in the country. I just also am way too familiar with all sorts of well-intended laws put in place to prevent abuse that lead to even worse unintended consequences down the road.

[Grizlaw]

I do agree with the general sentiment of the article, but the problem is that this author, like so many others, does nothing more than illustrate the problem; he does not suggest anything in terms of a solution. Stories like this always annoy me to no end -- if you're going to flap your arms around and publicly declare that the system is broken, at least make an attempt at suggesting ways to improve it.

Saying that you favor "tort reform" is kind of like saying that you favor "energy policy." Tort reform covers a very broad range of ideas, some of which would probably be beneficial to society, and some of which would not. I would venture that many of the politicians who claim to favor it do not truly know specifically what the term means (aside from having a general notion that it should be harder for people to sue), and I am certain that the vast majority of the voting public does not. As for my own personal opinion, I hate discussing issues like this in a vacuum -- I do favor certain reforms that some would label "tort reform," and I am opposed to others. I am always happy to discuss the pros and cons of specific ideas, but I hate discussing wishy washy terms like "tort reform."

It's hard for me to read an article such as this one and make any conclusion other than that the lawsuit in this particular article is frivolous, and the attorney who brought it should probably be sanctioned by the court. Would I cite this case as evidence that our judicial system needs radical reform? No; rules are already in place to deal with things like this. The answer isn't more regulation and restrictions; the answer is using what already exists.

[El_Gato]

gl,

One thing I'm in favor of in cases such as this is that the plaintiff and/or their attorney must put up a bond that would cover the anticipated legal costs of the defendant should the defendant be found not liable.

So many companies/entities simply settle cases like this because they know that even if they win, they will incur significant costs defending themselves. Settlements often are preferable because they are a quick and easy solution to the problem, plus settlements insulate the company/entity from the oddities of jury decisions.

"Settlement Justice" would begin to decline immediately if plaintiffs faced paying for their opponents costs, IMO, because A) more defendants would be willing to take an action to court rather than settle, and B) knowing this, fewer "frivolous" cases would ever be filed by unscrupulous people and/or attorneys.

Ultimately, I'd like to see a system where a judge (or some type of review board or grand jury) could simply look at a case like this and rule whether or not it has enough merit to warrant ANYONE spending $$ to pursue or defend it. Maybe something like this already exists, gl?

One of my favorite "frivolous lawsuit" stories resulted (at least in part) in the warning labels you see on hard liquor bottles, warning of the potential hazards of consuming alcohol while pregnant. When I lived in Seattle in the late 80's, I remember the story of a local woman suing Jim Beam because she claimed that the company should have warned her somehow that consuming a FIFTH of their whiskey everyday during her pregnancy might somehow damage her unborn child (which it did). JB settled for an undisclosed amount and VOILA! Now we have a warning label! (and that woman no doubt has a lot more $$ than you or I)

[SonomaCat]

One thing I'm in favor of in cases such as this is that the plaintiff and/or their attorney must put up a bond that would cover the anticipated legal costs of the defendant should the defendant be found not liable.

Wouldn't this have the potential to keep poor people from filing lawsuits? Should a person's available cash (or credit rating if they have to take out a loan) be a factor in whether or not they are able to seek justice in our court system?

[El_Gato]

A PS, gl, after I reread your comments:

Shouldn't/couldn't we come up with some type of schedule or formula that would award plaintiffs "fair" (I realize that's a loaded word) damages and limit or prevent juries from some of the outrageous REWARDS we hear being handed out?

Another example comes to mind (you said you liked "case by case" issues); I read in Newsweek back in the 90's in an article about ridiculous awards by juries about an Alabama man who was fraudulently overcharged $1000 on an auto loan by a GMAC loan officer. The story didn't go into detail about what specifically happened to the man because of this fraud nor how the jury arrived at their decision, but in the end the man was awarded $64 MILLION!! It seems to me there has to be SOME way to prevent this type of lunacy!

[El_Gato]

Wouldn't this have the potential to keep poor people from filing lawsuits? Should a person's available cash (or credit rating if they have to take out a loan) be a factor in whether or not they are able to seek justice in our court system?

Did you notice I said "or their attorney"? If a lawyer TRULY feels his client has a case, shouldn't he be ready to "back it up"? This is part of the problem, BAC; too many attorneys figure spending some time on a case they know (or at least suspect) is baseless STILL pursue them in the hopes of a quick (and possibly lucrative) settlement. gl may have some stats/data/info on this, but I wonder how many of these types of lawsuits evolve from a plaintiff honestly seeking out counsel vs counsel pursuing someone and "turning them into" a plaintiff/victim.

(And it's amazing how predictable you are, BAC, because I just KNEW you'd respond this way)

[SonomaCat]

Of course my response was predictable, because you knew that it was a compelling question, and one that would need to be worked through (as is the case with all kinds of potential solutions).

Including the attorney does nothing to level the field, however. If we want a fair legal system, we can't count on attorneys to subsidize certain clients who happen to be unable to afford the bond necessary to file a lawsuit. Such a fee structure would discourage attorneys from taking lawsuits based on the economic status of the individual, and that's inequitable treatment.

This is what I am talking about in terms of unintended consequences. I once agreed with the bond system you are talking about, but after I thought through the possible negative implications, I realized that it wasn't such an easy answer.

What if the courts had the discretion to waive the bond for a poor litigant? This would again force us to rely on the judge to make a decision as opposed to a one-size-fits-all legislative solution, but perhaps such a modification upon the kind of solution that you are talking about would be workable? I'm still not sure if it would pass muster under a Fourteenth Amendment equal protection test, but it would at least have a better shot.

[Grizlaw]

There are quite a few different concepts covered in the last few posts. I'll try to respond to everything at once.

First, the system Gato raises is a variation on what is commonly referred to as the "loser pays" rule. Some European countries have such a system in place; the basic concept is that, in any litigation, the losing party is responsible for the other party's litigation costs, including attorney's fees. (In countries that have such a rule, it generally is a two-way street; if the plaintiff wins, the defense pays its attorney's fees as well.)

I have two problems with the loser pays rule. First, as a generic rule, I think it is that it is too broad -- it would prevent frivolous lawsuits, but the thing you have to remember is that not all lawsuits where the defendant ultimately wins are necessarily frivolous. The reality is, even in cases where the plaintiff has a relatively strong case, you can never be sure what a jury will do. The bottom line is, I think the loser pays rule would also prevent a lot of lawsuits from being brought that, while not slam dunk cases for the plaintiff, are certainly not frivolous.

The second problem I have with the loser pays rule is that it would definitely stifle the types of litigation that bring about social change. Think about all of the landmark Supreme Court cases that have shaped the history of our country (the civil rights cases, etc.) Those cases made new law -- by definition, they all started out as lawsuits that, while the plaintiffs ultimately won, were certainly not clearcut cases when they were filed. Under a loser pays system, such cases would be less likely to have been filed in the first place.

What I do favor, though, is holding plaintiffs and/or their attorneys liable for the defendant's costs and attorney's fees in cases that are judged to have been frivolous. Rules for this do exist in the rules of court procedure. If you're in federal court, you are subject to Rule 11 of the Federal Rules of Civil Procedure, which allows the Court to impose penalties against a party that raises a frivolous argument (I believe the phrasing of the rule is that any legal argument made must be made "after an investigation of the facts underlying the claim, and must be supported by existing law or a good faith, non-frivolous argument for an extension of existing law," or words to that effect.) Many state courts have adopted the Federal Rules in their entirety, and those that have not do have similar rules. Where this rule has been utilized in the past, the party being penalized (or more often, the party's attorney) generally has to pay the other side's attorney's fees incurred in responding to the frivolous argument (or all of their attorney's fees, if the entire case is frivolous), and must also pay a penalty to the court. The rule is rarely used, and that, I believe, is the problem. I do favor making plaintiffs pay defendants' legal fees in frivolous cases; I just don't favor it as a rule of general applicability in all cases. (And incidentally, I also believe it is generally the attorney who should be responsible, not the plaintiff -- the attorney is the one who is in a better position to know what is and is not a frivolous case or argument.)

Gato also mentioned a system where cases could be sort of "pre-screened" prior to being brought to trial, and the frivolous ones weeded out. I believe such a system does exist, also within the procedural rules of court. If a case is truly frivolous, the defendant should be able to get it dismissed on procedural grounds by establishing that the plaintiff cannot establish one or more necessary elements of their cause of action (and after the case is dismissed, the next step should be to move for Rule 11 sanctions). This is not a perfect solution; cases do slip through the cracks and end up in front of juries, but I'm not sure a better solution is possible (adding another level of review would be costly, and I'm not sure it would add much value in light of the fact that there are procedural rules already in place that are intended to serve the same purpose).

Moving on -- Gato also mentioned a case about a guy who was awarded $64 million for a case where he suffered $1,000 in damage from GMAC. That is a ridiculous windfall for the plaintiff; I agree. Without knowing the facts of the case, I have to assume that GMAC's conduct must have been fairly aggregious, and that most of the award was punitive damages, which are intended not to compensate the plaintiff, but to punish the defendant for bad conduct.

Punitive damages are a tough issue. Giving a plaintiff $64 million is not justice, but on the other hand, if the damages are intended to punish a corporation the size of GM, the award has to be large enough to get their attention. One idea that I have always thought has some merit is to legislatively allow juries to award punitive damages, but to have the award go to the state, a charity, or somewhere other than to the plaintiff or his attorneys. Juries would still be able to punish a corporation for truly heinous conduct if they saw fit, but there would be no incentive for plaintiffs or their lawyers to bring cases in the mere hope that they would hit such a jackpot. Any thoughts?

--GL

[SonomaCat]

It sounds like the system of forcing the plaintiff to pay the defense fees only in cases that are deemed to be frivilous is a pretty fair approach. That focuses in on the problem itself without limiting access to the court system for poor people with cases that are valid cases. Would it be legislatively possible to make the application of the existing rules of that nature mandatory?

I had never thought about the punitive damages ideas you brought up. I really like the idea of the awards going to a charity, especially if there was a good method for picking a charity that dealt with the kinds of issues that the defendent was being punished for. I could see that selection process becoming politicized, though.

I have a feeling that El Gato will agree with me when I say that I would rather not see the state get the money if it were to go into the general fund. However, if the cash was earmarked for a particular use that benefitted appropriate activities (cash for the legal system, cash for victim's groups, or something that most people could agree was an appropriate use and not just a boondoggle use of cash by politicians), then I could support that idea.

[Grizlaw]

I had never thought about the punitive damages ideas you brought up. I really like the idea of the awards going to a charity, especially if there was a good method for picking a charity that dealt with the kinds of issues that the defendent was being punished for. I could see that selection process becoming politicized, though.

Just as an afterthought to this idea...

I have never thought carefully about the "who should get the money" question before, aside from sharing your general preference that the state general fund not be the entity that ends up with it. One thing that has crossed my mind as I am thinking about it, though, is that it would probably be preferable for the jurors not to know who was going to get the money, as that knowledge might affect their decision in the case (i.e. a juror who has a mother that is dying of cancer would be more likely to advocate a huge punitive damages judgment if they knew it was all going to go to cancer research). Thus, if such a system were going to be imposed, I think the punitive damages would have to go into a blind fund that was apportioned out to various organizations (kind of like the blind investment funds that federal judges invest in).

[El_Gato]

GL,

I'm at least a bit encouraged by the fact that there IS a method for "slapping" lawyers who promote frivolous cases. Your comments do make it sound, however, as if this rarely happens. It doesn't appear to me that it is much of a deterrent in light of this case or, for instance, the one in which the Ronan Public School is being sued by the parents of 2 boys who skipped school, got drunk, and ended up dying due to a combination of alcohol poisoning and exposure to a winter storm.

Is it simply that the States, Feds, or other attorneys just don't want to take the time or spend the money to go after frivolous case attorneys? Is there some sort of lawyer's "code" that keeps you from going after each other (the old joke about sharks not eating each other comes to mind! )? Or is there some other commonly held reason why we don't hear about this happening? Does the rule need refining so that it becomes an actual deterrent?

Another of my favorites: In Florida, back in the 80's, maybe 90's, several guys robbed a bank, took some hostages, and then were trapped by the cops inside a van. All but one of the bad guys gave up without a fight, but 1 came out firing. The cops opened fire on the guy & ended up inflicting 21 bullet wounds on him, BUT HE DIDN'T DIE! After his recovery, he filed a lawsuit against the Police Dept. for inflicting unnecessary pain & suffering on him! I never did hear the outcome of that one, but it was amusing, nonetheless!

[Grizlaw]

Is it simply that the States, Feds, or other attorneys just don't want to take the time or spend the money to go after frivolous case attorneys? Is there some sort of lawyer's "code" that keeps you from going after each other (the old joke about sharks not eating each other comes to mind! )? Or is there some other commonly held reason why we don't hear about this happening? Does the rule need refining so that it becomes an actual deterrent?

I think it's probably a combination of things. First and foremost, I think defendants are only willing to spend the time and money to pursue sanctions when their legal costs are fairly high. If a case gets dismissed before it progresses very far, the defendant's legal costs will be minimal, and I think a lot of them probably figure it's not worth the time, trouble and risk of pursuing (by "risk," I mean the risk that they won't prevail, in which case they've incurred additional legal costs for nothing).

Second, as far as there being a lawyer's "code" that discourages pursuing sanctions against other attorneys -- I think that actually is somewhat of a problem in smaller communities, where the same attorneys end up working either together or against each other all the time. It is definitely not the case in larger cities, though; the practice of law here in New York is considerably more cut-throat than it was back in Montana (at least in my limited experience in MT). One possible solution for this problem is for judges to be more willing to impose sanctions on the attorneys sua sponte (without being asked by the parties). The current proceural rules do allow that, but judges rarely do it. Maybe they should.

Third -- although, as I said in an earlier post, it probably doesn't happen often enough, I think the reality is that defense attorneys probably do pursue sanctions against plaintiff's lawyers a lot more often than you hear about. When these cases get reported in the media, the story is always the ridiculousness of the case itself; the disposition of the case is an afterthought. For example, look at the case here in NY where the plaintiffs were suing McDonald's for making them fat. Does anyone know what ever happened with that case? I know it was dismissed, but I only know that because there was a *tiny* blurb about it in the paper. I don't know if the defense sought sanctions agains the plaintiffs' attorney or not (I certainly hope so), but my point is, even if they did, we never would've heard about it -- we barely heard that the case even got dismissed.