Scumbag lawyer and plaintiff strike again.

[makattak]

Absolultely correct.  Unfortunately, most people seem to think that "sue" means "win."  In reality, "sue" means to file a lawsuit, nothing more.  I guess I shouldn't be surprised at the lack of knowledge since so many people are so damn lazy that they can't even think for themselves.

Yes, however, even "sue" means you have to pay for a lawyer to defend you.

And, because of the foolish rules in the United States, you have to pay for your lawyer even if you win.

So, no matter what, it's going to cost you.

[Nick1911]

Yes, however, even "sue" means you have to pay for a lawyer to defend you.

And, because of the foolish rules in the United States, you have to pay for your lawyer even if you win.

So, no matter what, it's going to cost you.

It always seemed to make sense that the loser cover all associated costs.

[Fly320s]

Yes, however, even "sue" means you have to pay for a lawyer to defend you.

And, because of the foolish rules in the United States, you have to pay for your lawyer even if you win.

So, no matter what, it's going to cost you.

Luckily, some of the cases get thrown out before an attorney is needed.

I agree with the "loser pays" system.

[BridgeRunner]

Michigan has a case evaluation approach that is nice.  Does not place all the risk of paying the other party's legal fees on the loser *unless* the loser refused for settle for an amount close to what was recommended by a panel of evaluators.

Sadly, case evaluation is the final step before trial.

[MGshaggy]

Loser pays is a great system...until you actually think about it.

All loser pays does is insure the small guy never sees his case move unless it is a 110% airtight win, just waiting to be filed.  If there's any doubt whatsoever as to the outcome, especially against a bigger and better funded adversary, they simply won't find a lawyer to take their case.  Imagine trying to go after your bank, insurance company, employer, etc. for something.  It would be sort of like having $10k in the bank, a job that pays $50k/year and trying to convince your broker to give you a $10 million naked short on some stocks.

Whats needed is greater use of sanctions under Federal Rule 11 (bringing a frivilous case) or similar rules under state law.  Similar to what Bridgewalker said, I know Delaware will assess a party for additional legal fees incurred if an offer of judgement is made and denied, and the judgement at trial awards less than the offer.

[MillCreek]

I like to point out that I used to do insurance defense (medmal) for a living.  I still keep up with the case law on insurance coverage issues in general.  In the majority of states, should you have to shoot someone in self-defense, there will be no coverage under your homeowners/renters insurance policy.  This is due to the 'intentional act' exclusion.  

In a very small number of states, there may be regulatory or case law holdings providing coverage in this scenario.  The more 'accidental' the shooting, the more likely there may be some coverage.  I always tell people to read the policy and ask your lawyer or the insurance company (underwriting or legal department) for an opinion if they have any questions.  Don't bother to ask your broker or agent since this is an area of policy interpretation upon which they are not experts, and they don't have the capacity to bind the insurance companty to their interpretation.  Here in Washington, under the typical homeowners/renters/personal umbrella liability policy written on the ISO standard form, there is no coverage for a self-defense shooting.  

You will occasionally read in the media of what sounds like an intentional self-defense shooting claimed to be an accident; i.e.: the gun went off by itself.  This is usually done by the insured in an attempt to get coverage as an accident.  Sometimes this works and more often it does not.  Many states have case law on this exact fact pattern.

[Lee]

Sometimes this works and more often it does not.

So which stories worked...just for future reference?

[Strings]

Ok, maybe I'm naive, but wouldn't the insurance company declining to cover a self defense shooting be BETTER for you (from a liability standpoint)? Seems to me that such an action on the insurance company's part would make lawyers less likely to take a civil case against you (less likely that they'd get any money)...

[MillCreek]

Ok, maybe I'm naive, but wouldn't the insurance company declining to cover a self defense shooting be BETTER for you (from a liability standpoint)? Seems to me that such an action on the insurance company's part would make lawyers less likely to take a civil case against you (less likely that they'd get any money)...

Most personal injury lawyers follow the money and file claims/lawsuits in cases for which they hope to get money.  Insurance policies or substantial unencumbered personal or business assets are where the money is.  If you don't have insurance or substantial assets, it generally does not make economic sense to sue you, unless someone is doing it for a cause and is not worrying about a payoff.   I suspect that most personal injury plaintiff lawyers are very well aware of the insurance companies in their jurisdiction and what is covered and not covered by the policies. 

As an example, in my field of medical malpractice, back in the early 90's, almost all of the insurance companies started writing an exclusion for sexual contact with patients.  In other words, if you sleep with your patients, your insurance company would not cover that as a malpractice claim.  So the provider would have to pay for the defense and settlement/verdict of any such cases out of pocket.  Without the big insurance dollars to tap into, the number of these civil claims has dropped tremendously over the years.  Nowadays, the insurance companies will give the provider a legal defense (as long as you deny the allegations) on the insurance company's dime, but will not indemnify; i.e.: pay for any settlement or verdict.   So this area is an example of how no insurance led to a reduction in the number of claims and suits.

Another example is being hit by an uninsured driver, and this is not covered by your own personal auto policy.  Since the other driver has no insurance, and probably not much in the way of assets, it is not worth the time and expense to sue them.  And even if you did get a judgment, could you ever collect on it?  So you could argue that having no insurance and no assets makes you suit proof or judgment proof.

[De Selby]

Ok, maybe I'm naive, but wouldn't the insurance company declining to cover a self defense shooting be BETTER for you (from a liability standpoint)? Seems to me that such an action on the insurance company's part would make lawyers less likely to take a civil case against you (less likely that they'd get any money)...

Not if you have a house-a lien on a house or property is a pretty powerful collection instrument, depending on the size of the judgment. 

Cash is best, but a fairly valuable home in which you have equity isn't the worst thing a PI lawyer could find. 

What MillCreek is saying is definitely true-it's just that when you're talking about homeowners insurance, there's already one big asset the attorney can go after.  So you would not want to be without coverage for the risk, because if you did end up facing a judgment, the first thing they will go for is your house.

[KD5NRH]

Cash is best, but a fairly valuable home in which you have equity isn't the worst thing a PI lawyer could find.

Unless he's in Texas, and said home falls under the homestead exemption.

It's one of my favorite things about this state; a creditor can't take the things you need to live, the tools of your trade, two firearms, or most low-value items. (with a $30k/person, $60k/household limit on the small items - the home is not included in this - but it's based on actual current market value, so it ends up being a lot more stuff than you might think)  Thus, they can't ruin you as punishment by keeping you from earning the money to pay them off. 

It also means that a lot of individuals are effectively judgement-proof in terms of this type of get-rich-quick lawsuit.  These types don't want to wait decades for a blue-collar worker to pay the settlement at $50 per paycheck or whatever.  They want the big money ASAP, and I'd bet they're only including him as a defendant because it would be too transparent to only go after the businesses.

[MillCreek]

And as I recall, wasn't this the reason why OJ Simpson moved to Florida after his civil judgment?  I recall reading at the time that any property he owned in Florida and his NFL pension could not be seized to satisfy the judgment if he was a Florida resident. 

PS: Edited to add this material found on the blog of a Florida probate/asset protection attorney.  Based on the Googling I did, it seems that if you are going to file for bankruptcy, you should move to Florida first since it is one of the most generous states in the nation in terms of homestead and other asset protection.   

Florida Asset Protection Law are illustrated by this article and the reason that OJ Simpson moved his residence to Florida. As a Florida resident he obtained creditor protection by owning a homestead within Florida. Also annuities and pensions are not subject to claims. So despite the tens of millions that he owes the Goldman family for having been found responsible in the death of Ron Goldman he has not paid anything because he has lived off his NFL pension.

He is not taking a fee for his public appearance or autographs because while he has protected his assets and will not pay anything for his judgement living in Florida based on the pension and his house is not subject to attachment but future earnings are subject to the judgment. Since he has the $4m pension and does not want to make any payments to the goldman's he has intentionally not made any additional money. Florida law is one of the most generous states for debtors though.

Other people have chosen Florida to live because an unlimited value of their homestead can be held as well as pensions and annuities that are generally not subject to creditor claims. (Mechanics liens on a home and the IRS being potential exceptions) which is far more generous to debtors than other states

[MillCreek]

These types don't want to wait decades for a blue-collar worker to pay the settlement at $50 per paycheck or whatever.  They want the big money ASAP, and I'd bet they're only including him as a defendant because it would be too transparent to only go after the businesses.

Referring to the original lawsuit that was the subject of this post, the employee is named as a defendant for a very good reason.  The plaintiff counsel realizes that the employee likely has no assets or insurance that would make it worthwhile to pursue a claim against him.  But by naming the employee, they are then able to bring in the employer as a defendant on the basis of vicarious liability under respondeat superior.  This is a legal doctrine establishing that an employer is generally liable for the acts of their employees done within the scope of their employment.  Once you bring in the employer, you can access their insurance and business assets to satisfy any judgment. 

In my malpractice cases, the individual provider and then the partnership/corporation as the employer is always named as a defendant.  The same applies to hospitals being named as defendants based on the actions of the nursing staff.

[Hawkmoon]

Yes, however, even "sue" means you have to pay for a lawyer to defend you.

And, because of the foolish rules in the United States, you have to pay for your lawyer even if you win.

So, no matter what, it's going to cost you.

Minor correction -- if you're not really at fault in such a situation, once you get sued you have no "win" option. There is only "don't lose." The courts love to blather about "making the party whole," but there is never any discussion about "making whole" a person who is the subject of a frivolous, nuisance suit.

[MGshaggy]

but there is never any discussion about "making whole" a person who is the subject of a frivolous, nuisance suit.

A lawyer can be sanctioned and fined for bringing a frivilous suit.  Its rarely used, but in the federal rules its under FRCP Rule 11 - I believe most states have a similar rule.

[Uncle Bubba]

I read somewhere years ago about how the courts in the United Kingdom handled lawsuits.

An officer of the Court was assigned to vet all suits. Some he passed on to be heard by the Courts, some he gave back to the plaintiffs or their representatives with the admonition that "Some things should not take up the Queen's time."

As far as I know that position has been abolished, or is at least no longer operative. I've heard from acquaintances there that the UK is having as hard a time with ambulance-chasing lawyers as we are. Too bad, and worse that we don't and almost certainly never will have anything like it in our system.

[De Selby]

A lawyer can be sanctioned and fined for bringing a frivilous suit.  Its rarely used, but in the federal rules its under FRCP Rule 11 - I believe most states have a similar rule.

It's true in California.

"Loser pays" is a good way to end up with an army of government regulators.  That's what happens when your population is no longer able to conduct private enforcement of its rights, which is all that a lawsuit is-a private party action to enforce a right.  Too many unpaid/egregious acts will lead to one or the other. 

There are very, very good arguments for the private system, if you ask me.

[crt360]

Whoa.  A lot of people here sure are quick to deny access to the legal system to someone just because they were DWI.  While operating a motor vehicle under the influence of alcohol or other distractions is bad, it's not certain proof that such a driver was 100% responsible for an accident they were involved in.

We know very few of the facts.  We do know that an expert witness previously swore under oath to statements that support the girl's position.  If she's successful, she will not be the first or last impaired driver to claim that another party was at least partially responsible for an accident.

What has her lawyer done that makes him a scumbag?  What has he done that you wouldn't want your lawyer to do if you felt another driver was at fault in causing an accident that killed your passenger and destroyed your vehicle?

As to the intoxication manslaughter, what if you'd only had two or three beers at dinner hours earlier and the .02 you blew was put in the report as a .20, accompanied by video of you staggering around (apparently drunk) after the wreck?  Would you think four months in jail and eight years probation would be too light a sentence?  Could anyone here, at age 21, have contemplated completing eight years probation?  Despite knowing that the other driver swerved recklessly into your lane causing an accident that couldn't have been avoided, would you take full responsibility for it just because you had been drinking?

I realize it's fun to jump on the "the world is coming to an end because of frivolous lawsuits" bandwagon, but it's far from the truth (at least here in Texas).  The sad reality is that there are way more potential plaintiffs with legitimate claims that can't find or afford legal representation against employers, landlords, car dealers, hospitals, insurance companies, neighbors, law enforcement agencies, municipalities, etc., and the lawyers that manage to take a few of these cases a year, expecting to make little or nothing on them, are anything but scumbags.