Armed Polite Society
Main Forums => The Roundtable => Topic started by: makattak on August 29, 2011, 10:46:08 AM
-
http://www.sltrib.com/sltrib/world/52469658-68/garrity-card-court-lawsuit.html.csp?page=1
Children suing their mother for "bad parenting" because she didn't send a check with a birthday card and didn't want to spend as much on a party dress as her daughter (I assume daughter, maybe her son wanted a pretty party dress) wanted to spend.
Oh, and they are being represented by their lawyer father against his divorced wife.
Not, it was dismissed, but that doesn't mean the mother isn't out a significant amount of money paying for her lawyer.
Yep, nothing wrong with a legal system that lawyers can use as a weapon of revenge against others. No need for loser pays laws at all.
-
If the case were as frivolous as the paper presents it there are rules in place for frivolous lawsuits. The plaintiff can be made to pay and the lawyer can face sanctions and even disbarment.
What I think is more likely is that the paper has cherry picked comments to hype the story.
My favorite example of that is the woman suing for spilling coffee on herself... excluding that the coffee show had been cited numerous times for healthcode violations as it was super heated [I think jury rigged to be so that they could pre-prepare the sealed coffee cups for busier times], that the women needed skin grafts, and that her award was overturned. Hot Coffee is one thing, superheated is another. Superheated is when a liquid is over the boiling point but due to compression is still a liquid, often causing explosions. Slight jostle of the sealed coffee cup... Steam burns are nasty.
-
If the case were as frivolous as the paper presents it there are rules in place for frivolous lawsuits. The plaintiff can be made to pay and the lawyer can face sanctions and even disbarment.
What I think is more likely is that the paper has cherry picked comments to hype the story.
My favorite example of that is the woman suing for spilling coffee on herself... excluding that the coffee show had been cited numerous times for healthcode violations as it was super heated [I think jury rigged to be so that they could pre-prepare the sealed coffee cups for busier times], that the women needed skin grafts, and that her award was overturned. Hot Coffee is one thing, superheated is another. Superheated is when a liquid is over the boiling point but due to compression is still a liquid, often causing explosions. Slight jostle of the sealed coffee cup... Steam burns are nasty.
Superheated coffee? Certainly not Liebeck v. McDonald's Restaurants (http://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants), which is the famous "Woman Spilling Coffee on Herself" case. I would like to read more about the superheated coffee case.
-
I think that is the case. Lead attorney spoke at my school. Things are alot different between the plaintiff and the defense attorney. That page seems to reflect the multibillion dollar corp's position rather than the 70 some year old woman.
-
how do you imagine they kept the liquid under compression?
Things are alot different between the plaintiff and the defense attorney
yea..... a lot
http://www.slip-and-sue.com/the-famous-infamous-mcdonalds-coffee-spill-lawsuit-revisited/
:facepalm:
-
The system is sick. The only way to fix it is loser-pays. File a junk suit and lose or it gets dismissed? You pay court and lawyer fees for the other person. That would dry up the bottomless pit of bullshit lawsuits.
-
downside is it would further tilt the scales to favor wealth over right. and its pretty tilted now
-
I think that is the case. Lead attorney spoke at my school. Things are alot different between the plaintiff and the defense attorney. That page seems to reflect the multibillion dollar corp's position rather than the 70 some year old woman.
In that case it is pretty obvious the attorney was intentionally misusing the term "superheated" to represent any hold temperature over the recommended industry norm as an inflammatory tactic.
Brad
-
downside is it would further tilt the scales to favor wealth over right. and its pretty tilted now
This. It would discourage people from suing, for example, big corporations when they have anything less than 100% guaranteed win.
-
downside is it would further tilt the scales to favor wealth over right. and its pretty tilted now
Poor folks with marginal cases can't be assured of getting a lawyer to argue for them outside a Hollywood movie, nowadays, anyway. Don't see that reality changing, no matter the system.
What this would do is make the industrial/assembly line tort lawyers go back to being lawyers, rather than mass lawsuit production managers.
-
if we could realistically expect land sharks to police themselves we wouldn't be having this discussion. i think a return to the code duello would help
-
In that case it is pretty obvious the attorney was intentionally misusing the term "superheated" to represent any hold temperature over the recommended industry norm as an inflammatory tactic.
Brad
I've just got alot of faith in those heavy foam cups ;)
-
The system is sick. The only way to fix it is loser-pays. File a junk suit and lose or it gets dismissed? You pay court and lawyer fees for the other person. That would dry up the bottomless pit of bull*expletive deleted* lawsuits.
The biggest loser in loser pays is you, the taxpayer. Massive corporations that can afford the risk litigate and appeal everything, knowing that they'll either recover their legal costs, force the other guy to drop the suit in exchange for costs waivers, or in the worst case have a far lower bill to pay than their own. The result is a court system that is clogged up with cases that primarily serve corporations, all of which costs you money - judges, juries, and staff are taxpayer funded.
Junk lawsuits can and frequently do result in "loser pays" awards and the disciplining of the lawyer who signed off on it.
Then theres also the cost to individuals. Loser pays is really only feasible in welfare states - the consequences of it absent public health and disability payments are too disastrous for any literate people to stomach otherwise.
-
Junk lawsuits can and frequently do result in "loser pays" awards and the disciplining of the lawyer who signed off on it. <citation needed>
Are you talking about the legal system in the United States? And just how do you define "frequently"? One out of 100? 1000? 1000000000?
-
Are you talking about the legal system in the United States? And just how do you define "frequently"? One out of 100? 1000? 1000000000?
Yes, United States, where I'm still licensed to practice law. I don't have a statistic, but I can tell you from experience (as can any other practicing lawyer) that sanctions are a real possibility, and they do deter lawyers from filing groundless complaints.
As Ned pointed out, mostly what happens is that the media doesnt get it, so they report half the story and allow us all to enjoy another "crazy lawyer" tale.
-
I suspect that the mother was getting stupidly large amounts of cash from kid's father for child support and kept most for herself, nickel-and-diming the kids whenever possible. Not exactly unknown behavior amongst the gold-digger crowd.
-
Junk lawsuits can and frequently do result in "loser pays" awards and the disciplining of the lawyer who signed off on it.
I can't argue that it happens but it doesn't happen anywhere near enough.
-
I can't argue that it happens but it doesn't happen anywhere near enough.
Where doesn't happen, it's mainly due to the incompetence of the defendants lawyers - our system doesn't employ judges to play nanny for anyone.
That's a benefit in my book - if the parties won't raise an issue why should the taxpayers raise it for them? There are legal tools out there for you to recover where a junk lawsuit has been filed. If they aren't used, we should really be questioning the extent to which this is media hype as opposed to a real problem
-
Where doesn't happen, it's mainly due to the incompetence of the defendants lawyers - our system doesn't employ judges to play nanny for anyone.
That's a benefit in my book - if the parties won't raise an issue why should the taxpayers raise it for them? There are legal tools out there for you to recover where a junk lawsuit has been filed. If they aren't used, we should really be questioning the extent to which this is media hype as opposed to a real problem
I guess it depends on what you define as a 'junk lawsuit'. In my area, medical malpractice defense, we win around 80% of the cases we take to trial. Certainly, many of those cases should not have been filed, but rarely are there going to be grounds for successful Rule 11 sanctions.
-
Yes, United States, where I'm still licensed to practice law. I don't have a statistic, but I can tell you from experience (as can any other practicing lawyer) that sanctions are a real possibility, and they do deter lawyers from filing groundless complaints.
As Ned pointed out, mostly what happens is that the media doesnt get it, so they report half the story and allow us all to enjoy another "crazy lawyer" tale.
Ah, I see what you mean by "sanctions."
http://en.wikipedia.org/wiki/Pearson_v._Chung
A recent obvious case of "lawfare". Mr. Pearson used his position as an attorney to harrass and maliciously damage the Chungs. His "sanctions" were $12,000. The attorney fees for the Chungs were in excess of $83,000. (Which they paid through donations to a legal defense fund given when this EGREGIOUS action by Mr. Pearson came to light.) They sold their dry cleaning business where the incident leading to this case occurred.
Oh, and he's still licensed to practice law in DC. After showing a willingness to use it as a weapon for a minor dispute, the DC bar did not disbar him.
-
the chungs didn't go after him. your solution would make it even less likely since if they lost they would have to pay both lawyers. in va we have a system that works and surprises some folks
-
the chungs didn't go after him. your solution would make it even less likely since if they lost they would have to pay both lawyers. in va we have a system that works and surprises some folks
They didn't go after him because it would have cost even more money to go after him. (And they had no certainty they would have both won judgement against him and then actually get him to pay it.)
Also, this didn't happen in Virginia, but DC.
-
the chungs didn't go after him. your solution would make it even less likely since if they lost they would have to pay both lawyers. in va we have a system that works and surprises some folks
Loser pays would have cost Pearson the $83,000 in legal fees that the Chungs put out.
-
We definitely need some sort of tort reform, but I agree "loser pays" isn't it.
For every frivolous or malicious suit it would prevent, I've got a gut feeling there's going to be lots of "honest" suits where perhaps the case would not go their way, but it was hardly some sort of money grab either.
-
We don't need "loser pays." We need mandatory sanctions (fines and suspensions) against attorneys who bring frivolous lawsuits. The case of these "kids" is a perfect example. The judge clearly saw it as a frivolous lawsuit devised by the father as revenge against his ex-wife -- yet the judge declined to whack him for it.
I think the wife is well off not being married to a first-class jerk like that ... and I feel sorry for any guy who marries the daughter.
-
We don't need "loser pays." We need mandatory sanctions (fines and suspensions) against attorneys who bring frivolous lawsuits. The case of these "kids" is a perfect example. The judge clearly saw it as a frivolous lawsuit devised by the father as revenge against his ex-wife -- yet the judge declined to whack him for it.
I think the wife is well off not being married to a first-class jerk like that ... and I feel sorry for any guy who marries the daughter.
I agree. However, every other idea I can think of to enact "sanity" in the civil courts is to enact some kind of extra layer of "courts for the courts", which certainly will make nothing better, or enforcement of mechanisms in the legal system that already exist, but aren't used.
Either way, you wind up chasing your tail.
Part of it is the trial lawyer lobby, and their representation in political office. Others are judges, who themselves (arguably by necessity) are all lawyers too.
Although trying to split that up so the "sympathy" and "professional courtesy" that creates some of the problem does not exist also quickly delves into solutions where the cure is worse than the disease, and easily could be draconian, or flat out unconstitutional.
Ultimately, it's all a cultural problem that people, and their attorneys feel it's acceptable to go after money in this fashion.
-
I agree. However, every other idea I can think of to enact "sanity" in the civil courts is to enact some kind of extra layer of "courts for the courts", which certainly will make nothing better, or enforcement of mechanisms in the legal system that already exist, but aren't used.
Either way, you wind up chasing your tail.
Part of it is the trial lawyer lobby, and their representation in political office. Others are judges, who themselves (arguably by necessity) are all lawyers too.
Although trying to split that up so the "sympathy" and "professional courtesy" that creates some of the problem does not exist also quickly delves into solutions where the cure is worse than the disease, and easily could be draconian, or flat out unconstitutional.
Ultimately, it's all a cultural problem that people, and their attorneys feel it's acceptable to go after money in this fashion.
Here's a solution:
Stop allowing a monopoly on legal services. The enforcement mechanism of the market will be brought to bear on the lawyers.
This, of course, is anathema to the legal profession. They don't want the uninitiated to threaten their security.
-
I sometimes wonder if and when the legal profession will follow the lead of the medical profession on this. It used to be that pretty much all medical care was provided by physicians. Now you have nurse practitioners, physician assistants, podiatrists and a host of others. When you strip away the politics of arguing about who is best qualified, the fact remains that about 70% of a primary care medical practice can be done just as well by a ARNP or PA.
There are many aspects of legal work that can be done by non-lawyers or limited practice officers. But with the monopoly enjoyed by the American Bar Association and state Bar associations, more work being offshored to foreign lawyers, and the dismal job market for current law graduates, there are not a lot of market forces working to bring change to the situation. Just like there is no viable reason why we cannot have online law schools but the ABA refuses to accredit them, and you generally need to graduate from an accredited school to be eligible to sit for the Bar.
-
Keep in mind the US has the highest number of lawyers per capita in the world (http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita) - 1 for every 265 people.
-
Keep in mind the US has the highest number of lawyers per capita in the world (http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita) - 1 for every 265 people.
But Shootinstudent said there aren't really many frivilous lawsuits, and that its media hype, so that must be the truth.
-
I guess it depends on what you define as a 'junk lawsuit'. In my area, medical malpractice defense, we win around 80% of the cases we take to trial. Certainly, many of those cases should not have been filed, but rarely are there going to be grounds for successful Rule 11 sanctions.
Of course that's a result of the special tort protections that doctors enjoy - that's why you have a high failure rate but low rate of sanctions.
-
Keep in mind the US has the highest number of lawyers per capita in the world (http://wiki.answers.com/Q/What_country_in_the_world_has_most_lawyers_per_capita) - 1 for every 265 people.
They're not all trial lawyers.
They're more a product of a fed.gov that's completely out of control. Tax lawyers, employment lawyers, environmental lawyers etc. etc. etc.
-
They're not all trial lawyers.
They're more a product of a fed.gov that's completely out of control. Tax lawyers, employment lawyers, environmental lawyers etc. etc. etc.
Also a product of parents relentlessly hounding their kids to become lawyers. Mine have done so for years.
ETA: A new word just for this thread: barratry (http://en.wikipedia.org/wiki/Barratry).
-
Also a product of parents relentlessly hounding their kids to become lawyers. Mine have done so for years.
ETA: A new word just for this thread: barratry (http://en.wikipedia.org/wiki/Barratry).
Didn't Metallica record a song about that? :P
-
Of course that's a result of the special tort protections that doctors enjoy - that's why you have a high failure rate but low rate of sanctions.
We have no tort reform or special protections for healthcare providers in Washington state. In some of the other states that I consult in, there are. But I have only done trial work in Washington.
-
We have no tort reform or special protections for healthcare providers in Washington state. In some of the other states that I consult in, there are. But I have only done trial work in Washington.
OTOH, Texas did implement medmal reform in 2003:
(https://armedpolitesociety.com/proxy.php?request=http%3A%2F%2Fwww.texmed.org%2FuploadedImages%2FCurrent%2FAdvocacy%2FLegal%2FLiability%2FTAPA_Newly%2520Lic_TexPhysician.jpg&hash=e31e6b314659c5b47b99edeb0c2b6c7eddb9f562)
http://www.texmed.org/template.aspx?id=5238
-
Yes, United States, where I'm still licensed to practice law. I don't have a statistic, but I can tell you from experience (as can any other practicing lawyer) that sanctions are a real possibility, and they do deter lawyers from filing groundless complaints.
As Ned pointed out, mostly what happens is that the media doesnt get it, so they report half the story and allow us all to enjoy another "crazy lawyer" tale.
Do you manage to type with a straight face?
I looked up the 2010 ADRC for Illinois (https://www.iardc.org/AnnualReport2010.pdf) and here's the numbers and breakdown:
There are 88,774 lawyers in Illinois in 2010. There were 5,617 greivences filed for alleged ethics violations.
So that's 6.3% of lawyers had greivences filed against them. I wonder what the % of Doctors who get sued is?
Out of 5,617 investigations only 148 were sanctioned (the ADRC doesn't list what the sanctions imposed were.)
That's a 2.63% sanction rate. Again, I wonder how many Doctors lose their malpractice suits?
So that's .16% of all lawyers in Illinois were subject to some form of sanctions. Again, we don't know what the sanctions were, unlike MedMal suits where generally the results are available in court records.
I did find some data on Doctors for 2007-2008. This was a survey done by the AMA (http://www.ama-assn.org/ama1/pub/upload/mm/363/prp-201001-claim-freq.pdf) of 5825 practicing doctors, across all specialties.
5.1% had been sued within the last 12 months.
64.8% of those claims had been dropped, withdrawn or dismissed, 25.7% were settled, 4.5% were resolved by alternative dispute mechanism, and 5% went to trial, with the defendant winning 90%. Average cost of defense was $40,649.
Of course that's a result of the special tort protections that doctors enjoy - that's why you have a high failure rate but low rate of sanctions.
If lawyers were sued for malpractice as much as Doctors were, there would be law schools closing down all over the country.