Another reason to hate lawyers

[MP57313]

QUOTE: Originally posted by gabe
some Plaintiff lawyers practice law by attrition. They view their suits like tadpoles---some make it, some don't; the more you file, the more likely some will make it. The fact that this suit was filed by no means indicates that the Plaintiff will win.

Should the notion of "loser pays" became a requirement, where the loser must cough up all court and attorneys fees? Would this help the "lawsuit congestion" situation, by reducing the number of nonsense lawsuits? Or would it just prevent the poor from even filing a lawsuit in the first place? As it stands now there seems to be little downside--to the plaintiff or the lawyer--to filing a frivolous suit.

[gabe]

MP57313,

You raise a very interesting topic: should the loser of a lawuit pay the cost of litigation. In many federal lawsuits, and in fewer state lawsuits, this actually is the case. However, the vast majority of the time, the loser is not forced to pay. I think I remember reading somewhere that other Commonwealth/Common law countries practice this system (Great Britain comes to mind).

I am not sure what I think about it. A loser-pays system would certainly preclude lawyers from filing lawsuits they know are not viable--and encourage settlements. But, you hit the issue on the head. It really discourages the poor--or even the middle class given how expensive lawsuits are--from filing suits that they honestly believe they have a right too. Also, losing a suit is not necessarily indicative of whether the suit was viable. There are several factors other than the strength of your case that could result in the outcome.

I can't answer your question, in that I see the strengths of both sides of the issue too strongly to go one direction or the other. But, what I can say, I don't see it happening in America for the foreseeable future, for basically the reason you identified.

Gabe

[Anonymous]

It all comes down to the current age we live in where no one is singly held responsibile for their actions. I'm fat because McDonald's food is too tasty and those commericals are irresistable. No, you're fat because you idly let yourself get that way; try exercising and eating a balanced diet. Last time I checked, trains don't jump off tracks chasing motorists. Granted there are sticky legalities to plow through such as... were there gates? Were they working? There's a bunch of what if's, but the point I want to make is where did common sense go? It's a railroad track, if there are two rails and some ties, then there is a possibility of a train coming through. I know I don't have all the facts, but come on!!! I just see way too many people in a hurry that can't wait the two minutes for a train to go by, that they'd risk their lives to go around gates or make a U-turn when if they just stopped and looked they'd see the end of the train. If people are that much of a hurry they can't spare two minutes for a train, then they need to overhaul their lifestyle. [soapbox]OOOPS! I didn't realize I was standing on that box of Detergent.

[jeaton]

Question. Anybody think that the installation of video cameras will help sort things out?

Jay

[jchnhtfd]

A few thoughts... other than an I think unanimous agreement that we have a Darwin award candidate here...

Junctionfan (and other Commonweatlh readers): don't worry. Commonwealth law in regard this type of suit is very very different from US law. While there may be a cause for action here, a barrister would be very careful indeed before taking this up. Also, Gabe has, I believe, heard correctly: in Commonwealth law, loser pays. Furthermore, except in very extreme circumstances, so-called contingency fees (if I win your case for you, I get a chunk -- a huge chunk -- of the award) are not allowed; legal fees -- like most other professional fees -- are based on time spent. And third, pain and suffering and punitive damage awards are also subject to extremely limited conditions, and are quite rare. Fourth, liability and award in such actions are approtioned according to liability -- and trespassers get pretty short shrift (there was a time when it was a pretty short rope, too, at least on Crown property -- but that's changed!).

I don't particularly think that things such as this are necessarily a reason to hate lawyers (or, in other countries, solicitors/barristers/notaries). What I do think is that these things are symptomatic of a cultural attitude that anything is fair, provided I win. Maybe I'm just old-fashioned... but I see the attitude in a wide range of professions, not just lawyers.

Jay -- will the installation of video cameras help? I wish I could say it would, but I doubt it. They probably will help in instances where there is a question about grade crossing signal functioning, or visibility, but in the case of someone walking on the tracks? I doubt it.

Will NS have to pay up? It may be cheaper than fighting the legal action.

Will the suit get thrown out as frivolous? It would be nice to think so, but I'm not optimistic...

[88gta350]

As for use of force and it's application at home and elsewhere. Every state has difering versions of that law. In EVERY state, if you or someone else is in danger of death or serious bodily injury, deadly force is allowed. Some states expand that to include rape as well. Some state, but not all, require you to attempt to retreat from the danger first. For example, if someone points a gun at you while mugging you, you should either just give up your wallet and let them go, or attempt to run away before using deadly force. In other states (probably Texas), you could simply shoot them on the spot.

As for in the home, in some states the same rule applies: you or your family have to be in danger of death or serious bodily harm. You can NOT shoot a burglar in the back as he's carrying your tv out of your house. In other states (I believe Illinois is one) you can use deadly force to protect your property, i.e. you can shoot someone for carrying out your tv.

These situations are further complicated by the need to give warning in some states. In some, you are required to issue a warning to the offender, if possible, to stop. The warning requirement is not needed if issuing that warning would put the issuer in further danger. In other states, there is no requirement that a warning be issued.

Imagine this: this is the situation that we're in at work. I work Nuclear Security at Three Mile Island Nuclear Generating Station.... a site that you would certainly want defended. Our parent company, Exelon, owns sites in several states so we have received training in the deadly force laws of those states. And believe me, with a large company like Exelon, we've heard the lawyers side of things.

Our site at TMI has sevral fence lines of razor wire, etc. There are no warning signs on these fences, but there are "no tresspassing" signs located around the island at the water's edge. As a private security force, we are subject to the same laws as any private citizen in that state (except we're allowed to have bigger guns and more ammunition). Because of this, if a band of 10 guys dressed in black, wearing backpacks, started climbing over the fence, or even blew the fence up, we would not be permitted to shoot them until they got to vital areas of the plant or openly diplayed a threat (via a weapon) to an individual. And if they did, we had to issue a warning (stop or I'll shoot!). As you can imagine, this would hamper our ability to protect the plant and none of the officers were real happy about it. Of course, it would prevent us from shooting the druken idiot who thought it'd be fun to climb the fence and sue the company.

The company wasn't doing this just to keep from being sued, but was following applicable state laws. The guards in Illinois could shoot to defend property, and the plant was Exelon's property, so they had an easier time of it. In PA, we could only shoot if they directly threatened us or someone else with death, rape, or serious bodily injury.

Before you go out and think about assembling a crack team to climb our fences with no weapons, or freak out and run to your newspapers saying our plants are unsecure, know this: The NRC has issued new orders that went into affect on Oct. 29 that required us to put up new barriers, etc... and Exelon has put up signs on the fence that state that the plant is protected by an armed secuirty force and you will die if you climb it. it has a picture of a guard shooting someone on a fence for Osama that can't read English. We are now allowed, at every one of our plants, to shoot on sight if someone starts cimbing the fence or attempts to go through it (explosives). Exelon lawyers have decided that the sign is our warning, and that anyone attempting to enter the facility has shown that they intend to kill or do harm to plant personell or the public through radiological sabotage. They've decided this meets all requirements for us to shoot on sight (warning issued and bodily harm apparent) even if no weapon is visible, and not be held liable, and they claim the company will back us 100% in court if we do.

This just gives you a little insight into the tangle of laws you have to wade through on use of force issues. And no, I didn't give out any safeguards information to terrorists in my little speal above.

BTW, in PA.... I believe that an indivdual can not be charged with tresspassing unless the area is posted or the owner of the property or the court has told the indivdual to leave. This is, of course, different for homes, but for property I believe that's PA law.

[gabe]

Wow, you guys seem to be throwing in the towel with regard to the suits filed and not giving society enough credit to await the outcome of the complained of suits.

How did that McDonald's obesity case turn out? I don't seem to remember reading about any mega-million dollar judgment against McDonalds since the coffee incident.

Also, I would take a closer look at crossing incidents before saying there are a lot of them that end up as a successful lawsuits. I don't want to go into too much detail about it, so as not to say something that may be relied upon, but it is not easy for a plaintiff to win a crossing incident now days.

As far as NS paying up, from what I hear anymore, the corporate strategy is to fight everything unless they know the plaintiff has them dead to rights. That way it discourages frivolous lawsuits--attorneys don't like to have to put 300 hours worth of time on a suit they know wont result in a settlement or a court victory.

Of course there are frivolous lawsuits, but the media really blows them out of proportion. If they were that successful, we wouldn't still be talking about the McDonald's lady--it would have been the twenty frivolous successful lawsuits since that time.

Gabe

P.S. I probably shouldn't admit this, but I don't think the McDonald's coffee suit was that frivolous--though I do think the damage award was outrageous.

If you hand someone a cup that you know the person is likely to put in their lap and give them 3rd degree burns if spilled, you--at the very least--should warn them of the danger. That having been said, I don't think she should have gotten 7 million for it.

[88gta350]

I'm pretty sure I heard the McDonald's obesity case was dismissed. And yes, McDonald's should have warned her the cup was hot, because in today's society you certainly can't expect people to KNOW coffee is hot. Should she have known? Of course. Does she have a legal claim not knowing and saying McDonald's didn't tell her? Apparently. And, as for that case like any other, it was horribly simplified in the news. She didn't just sue McDonald's because the coffee was hot, she sued because the lid was not satisfactory to prevent spillage, the coffee was TOO hot, and a mutitude of other things that ultimately led to her burning her groin. I'm not saying she deserved millions, or anything for that matter, just pointing out it may not have been as frivilous as everyone likes to think, or she wouldn't have won.

[Junctionfan]

I think people sue too much and all the time, wasting taxpayer's money and the court's time that could be hearing real cases and legitamate grievences.

[techguy57]

Three quick points to make here:
1) While I tend to believe cases like tend to get thrown out, I think we all agree that cases like these are the cases that make us, even most of the lawyers, realize how ridiculous our legal system can be, and ultimately how petty we as individuals can get to be if given the chance. While, I'm all for people who are genuinely affected (that's a whole other can of worms) getting compensated for that there needs to be a crackdown on what is allowable and frivolous. JoeKoh was exactly right, if the suit claims that there should've been warning signs posted wouldn't that mean that the defendant, at least at some level, would have had to believe there might be some risk in taking that route. Let's use another example, hypothetically let's say a man is walking to work for the late night shift and the most direct route involves crossing a major interstate. He never sees the postings at the on/off ramps, which clearly indicate doing such a thing is dangerous, during his crossing of the interstate, he crosses at a time when there is considerably less traffic, and in his mind there is no more concern that crossing at a busy intersection. While its not by any stretch a brilliant idea , unless he is mentally challenged or unstable, he has to uderstand there is fundamentally a risk in crossing the highway. In my opinion, of course I'm not a judge, the same holds true to the NS case. If I drive my car there is a risk that I get involved in an accident, whether it is from mechanical failure, driver (myself or another) error or negligence. Even so there is no warning everytime I get into my car that this is the case! Simply put there needs to be a more efficient method to weed out cases like these before they get to trial. Maybe we hire additional judges to sit on 2-3 judge review panelsas a part of it, I don't know, I'm just throwing out blind ideas here. But it is very obvious that these type cases are holding back more serious cases.

2) Despite the fact that she was tresspassing, how in God's name did she not see or hear or feel low rumbling of the approaching train? I can hear them from inside our administrative office building which is a good 100yds or more from the tracks, even with music going and other extraneous noise. And if she did hear or see why didn't she move?

3) Off the topic, in reference to home defense: I'm a moderate democrat, and I like to think a compassionate person most of the time. However, if someone is in my house univited I consider them a threat, regardless of whether or not they are armed with a gun, because there are many non-gun related ways that they could injure me, my family or my property. I will warn them once audibly, and if that doesn't resolve the situation, by either forcing them into identifying themselves or by forcing them into vacating the premises, the next warning will be noticeably more painful. There are somethings you just don't chance.

Mike

[gabe]

When you refer to Pennsylvania trespassing, are you refering to criminal or civil violations? For criminal, that is not an uncommon rule. For civil, that would be the exception to the rule. My guess is, that since you are a security guard, you are probably refering to criminal.

Also, I would note that though you are correct about many of the symantics of the law, the practical application usually wont work that way. Someone is in your home and you shoot them, the shooter/owner is not going to say, "you know officer, I didn't really feel threatened, and you know, I forgot to warn the SOB before shooting him." 9 times out of 10, if you shoot a burglar, the police interogation will be more sympathetic than aggressive, and who is going to contradict your story that you gave a warning, were scared for your life, etc.?

I imagine it would be the same for security gaurds. Reality is, if you see men dressed in black scailing a fence, you are going to shoot them and, if no weapons are found on the culprits, you are going to say, I could have sworn I saw them reaching for a weapon--and no one will blame you because everyone knows that they would be scared to death in that circumstance as well and do the same thing you did.

Gabe

[88gta350]

QUOTE: Originally posted by techguy57

3) Off the topic, in reference to home defense: I'm a moderate democrat, and I like to think a compassionate person most of the time. However, if someone is in my house univited I consider them a threat, regardless of whether or not they are armed with a gun, because there are many non-gun related ways that they could injure me, my family or my property. I will warn them once audibly, and if that doesn't resolve the situation, by either forcing them into identifying themselves or by forcing them into vacating the premises, the next warning will be noticeably more painful. There are somethings you just don't chance.

Mike

As the old saying goes... I'd rather be tried by twelve than carried by six.

[gabe]

Re coffee: she should have known the coffee was hot. Yes, she should have. But, I certainly don't expect it to be so hot as to give me thrid-degree burns.

Re once again: Everyone is saying how backward our system is without pointing to a single SUCCESSFUL supporting their position. For some reason everyone thinks that the system is judged by the types of suits filed, not won.

Gabe

[88gta350]

QUOTE: Originally posted by gabe

When you refer to Pennsylvania trespassing, are you refering to criminal or civil violations? For criminal, that is not an uncommon rule. For civil, that would be the exception to the rule. My guess is, that since you are a security guard, you are probably refering to criminal.

Also, I would note that though you are correct about many of the symantics of the law, the practical application usually wont work that way. Someone is in your home and you shoot them, the shooter/owner is not going to say, "you know officer, I didn't really feel threatened, and you know, I forgot to warn the SOB before shooting him." 9 times out of 10, if you shoot a burglar, the police interogation will be more sympathetic than aggressive, and who is going to contradict your story that you gave a warning, were scared for your life, etc.?

I imagine it would be the same for security gaurds. Reality is, if you see men dressed in black scailing a fence, you are going to shoot them and, if no weapons are found on the culprits, you are going to say, I could have sworn I saw them reaching for a weapon--and no one will blame you because everyone knows that they would be scared to death in that circumstance as well and do the same thing you did.

Gabe

Gabe, you were right, I was referring to criminal and to the letter of the law, not it's practical application. I was just pointing out that even at a site as secure as a nuclear power plant, deadly force and tresspassing laws can be cloudy at best. What would happen if some punk started climbing the fence with no weapon visible and we shot them? Technically, byt law we could be charged with murder, or manslaughter... but we probably wouldn't be. You can certainly bet though, that the person's family would sue us, the security contractor, and Exelon, and probably anybody else they can think of, for wrongful death, even given the new signs that are present. They might not win at a trial, but they'd probably get a nice fat settlement.

As for home defemse, you're right. Most times the police and lawyers will be sympathetic to your situation. However, there are a lot of people out there with the attitude "if someone breaks into my house I'll shoot them" that need to be aware that others have been arrested for murder, or at the very least sued. I can thinki of one case, don't remember the state, where a guy was drunk in his backyard, locked himself out of his house so he decided to break a window to get in. The only problem was, he was breaking into the wrong house (neighbor's). The homeowner shot and killed him, even though no weapon was visible and he wasn't doing anything threatening other than entering the house. I can't remember the criminal outcome.... I think the owner was arrested, but I do know he was sued by the family.

[tree68]

IMHO, one reason for filing lots of lawsuits is exactly why NS appears to have decided to fight all but the obvious - it often would cost more to fight the lawsuit to victory than to settle it out of court. Many people depend on this and are more than willing to accept a "settlement". They share the winnings with their lawyer and are out nothing. If "loser pays" was the law of the land, and they were looking at the possibility of a million dollar bill for legal services when they lost, they would never bring the suit in the first place.

Part of the problem is likely that all those settlements rarely make the news. Witness the story that did come out of the woman in CA that sued just about anyone she came in contact with, including neighbors for the kids playing basketball in their own back yard and children walking down the sidewalk in front of her house. It was cheaper and easier for the insurance companies involved to simply settle than to fight it. So she always "won."

[zardoz]

QUOTE: Originally posted by gabe

To whom are you refering when you say "jurors that will rule to their advantage." Are you refering to a specific case?

Gabe

No specific case; just in general.

[gabe]

QUOTE: Originally posted by tree68

IMHO, one reason for filing lots of lawsuits is exactly why NS appears to have decided to fight all but the obvious - it often would cost more to fight the lawsuit to victory than to settle it out of court. Many people depend on this and are more than willing to accept a "settlement". They share the winnings with their lawyer and are out nothing. If "loser pays" was the law of the land, and they were looking at the possibility of a million dollar bill for legal services when they lost, they would never bring the suit in the first place.

Part of the problem is likely that all those settlements rarely make the news. Witness the story that did come out of the woman in CA that sued just about anyone she came in contact with, including neighbors for the kids playing basketball in their own back yard and children walking down the sidewalk in front of her house. It was cheaper and easier for the insurance companies involved to simply settle than to fight it. So she always "won."

Good points Larry, but those types of settlements are going the way of steam engines--only they wont be missed. Insurance companies are leading the charge agains those types of settlements.

You raise another good point. Requiring the loser to pay really hurts when it is the poor people suing the rich. A poor person would probably only be able to hire a single lawyer at a very reasonable fee. If the rich defendant is forced to pay those attorney fees, they are thinking so waht. However, a legal department like NS has an army of attorneys billing at rates that make me want to stand up an salute.

Bottom line, it would be harder for a poor person to sue a rich person than a rich person suing a poor person. However, like is so often the case in America, the poor person really wouldn't be that bad off because of bankruptcy laws--it is the middle class that would really suffer from such a rule.

Gabe

[Anonymous]

WOW! When I started this topic yesterday I never expected such response. I have a few comments on tort law. First off I am NOT a lawyer. I ama professional engineer who has been trained (and doing for the last 40 years) to look through the bluster and see the facts.

Regarding contingency law suits. If we disallow them the arguement is that the poor (and maybe the middle class) person is denied his day in court. I suggest a modification of the English system where the looser and his lawyer are jointly responsible pays all of the costs incurred by the defendant for the costs if they loose. This will permit the poor person to have his day in court, if he has a true and valid case, but make the lawyer think twice about filing a frivilous suit. He has the pockets and has a lot more to loose.

Let me cite a personal experience. I spent seven years on the board of directors of our transit agency. We were having over 100 frivilous cases filed per year for slipping, etc, wherein the plaintiff would settle for 5-10 thousand with the contingency lawyer receiving 40% of the award. Our agency, like all companies, would do a cost-benefit analysis: If we go to court it will cost us atleast $10 thousand to fight the case and there always is the possibility that we may loose. The result was to get a release and sign a check for $5 thousand. Case closed. I had our legal department investigate the cases that came in. If we truly are at fault settle and save our good name. If it is a frivilous suit fight it to the hilt. Yes, we may spent $10-15 thousand where we could have gotten off the hook for a measly $5 thousand. We started fighting these cases. During the first year we spent $150 thousand fighting these cases resulting in 100% win ratio. The word got out on the street that the transit agency is no longer a retirement agency and our frivilous suits dropped significantly. Every year since the first year we have had less than 10 frivilous suits and we fight all of them. Heard some of the lawyers are now on welfare. Too bad.

Recently, one of the pharmacutical companies, I think it was Merck, voluntarly withdrew Vioxx from the market. Within 24 hours the ambulance chasing lawyers had advertisements on TV asking all who had ever taken Vioxx to contact them and become party to the class action suit. And we wonder why US drug amkers have withdrawn from the flu vaccine market and we cannot get flu shots this year. If I get the flu should I sue the lawyers?

Point to ponder. A lawyer has never awarded a single penny to a client in the history of the country. It is juries who make the awards. Now who brow beats the minds of the juriors?

[gabe]

wrwatkins,

Don't get me wrong, you say a lot of things that make sense, and your fighting the frivolous lawsuits story is indicative of a larger trend (although I would point out that most everyone feels that a lawsuit filed against them is frivolous).

But, I have to ask, how is it that you know so much about Vioxx and are able imply it is a frivolous lawsuit? For a contingency fee of 15%, I will gladly contact the defense attorneys and you can prove for them that they took reasonable steps to uncover the heart conditions that it causes and pulled it off the market as soon as they had reason to know there was a problem. I will make millions--to say nothing as to how much you would make.

It is not that simple. I sincerely hope that when a drug company puts a drug out on the market for serveral years that turns out to kill people that there is not a presumption that the drug companies are benevolent and looking out for us. I hope Merck didn't know or have reason to know about Vioxx problems, but I would much rather have that determined by a jury as opposed to taking their word for it.

Gabe

[tree68]

After I posted my other comments it occured to me that the settlement route will actually help the "lower classes" - if they have a valid claim. As has already been mentioned, companies that see that the claimant has a valid claim will often settle to help protect the company's good name. I would suspect that such a practice might continue (unless outlawed).

Since "loser pays" would theoretically weed out a lot of the truly frivolous stuff, the remaining cases could be weighed more easily on their merit. If the lawyer shares the potential liability for a loss, he's going to ensure that it's a good case, and will deserve his fee. The environment of such lawsuits would theoretically improve, meaning that juries might be less emotional about the issues as well. The less advantaged among us would benefit due to the supposition that we wouldn't have sued unless we really felt we had a case.

My [2c]

[Anonymous]

For Gabe

I assume that you are a lawyer based on your enlightment on this and other topics. I did not mean to imply that the Vioxx is a frivilous case. It has merit as the drug apparently causes problems. I have taken it in the past and now am on Baxtra. Today a study was reporting that Baxtra does the same as Vioxx. I will stop taking Baxtra, but have no intention of suing for having taken these drugs. What I am against is the practice of barristry (sp?) or solicitation of work by blatant TV ads. It is this type of lawyer who gives the whole industrey a bad name. I am sure that you agree with this.

Let me site another case of bad lawyering at our transit agency. One of our buses had its mirror hit a dump truck and the bus rocked slightly. The driver got out to exchange info with the truck triver. One passenger ran up and down the bus telling everyone to complain of pain and lay on the floor. After several attempts he found a place to lay on the floor and moan. He was transported to the hospital and "treated". About a month later a lawyer came in representing the passenger, who we affectionsately call the Actor, to talk settlement. We had been waiting on him. What he did not know was that this bus was a test case for television monitoring. We played the video for the lawer and he saw in vivid color and sound how his client staged his "pain". We informed the lawyer that if he pursues this case we will report him to the state bar for knowingly filing a false claim and he wil loose his license. At that point the lawyer said that he is withdrawing from the case. It has been over 5 years and we have not heard from him again.

[gabe]

As far as the advertising goes, I more or less agree with you. Your points concerning advertising are valid, if not persuasive. However, the other side of the coin is that advertising lowers attorney fees. If lawyers are not permitted to advertise, it is to the advantage of established lawyers. But, because I don't work in private practice and don't have a dog in that fight, I guess I agree with you. There are two sides of the coin though.

As far as the Vioxx is concerned, I have to admit, I am surprised that you wouldn't think about suing them. I certainly respect your decision, and if it were proven to me that Merek did everything they should have to prevent me from suffering, I probably would do the same thing you did. However, I would want it proven to me that Mereck did not fail to adequately test their drug and pulled it off the market as soon as they knew of the side effects. If they profited while they knew they were risking people's lives . . . .

Gabe

P.S. The bus story is a classic. I wish you would have moved for sanctions though. I know it is more trouble for you, but it helps everyone in the long run.