Zing!

Re: Ubu’s comment here.

“…with the goal of immunizing organizations from law suits.” Gniz. You assume legal uncertainty hurts only organizations. It’s true that they’re more often victims (deeper pockets are at greater risk), but they’re not the exclusive victims. This is probably your first time at Overlawyered; come back and keep up so you can see what I mean.

Of course, even of corporations were the only victims of legal uncertainty, corporations, after all, are owned by people, are run by people, employ people, and serve people. Using the word “organizations” may hide, but does not change the fact that institutionalized lawlessness hurts people.

If the rule was “anything goes”, then Daubert would seem to add the cost of separtly testing the scientific theory of a case. But that testing was being done, in theory and at some cost, by incompetent jurors.

To the extent that Daubert adds zeros to payments from junk science cases, the expected take by Plaintifs is reduced. I see that as social benefit, not a social cost.

I’m a Plaintiff’s lawyer and the lack of predictability can make it MORE difficult for my clients to get their day in Court. The attitude that has infected the entire judicial system (the law is a mere suggestion) also encourages defense lawyers to roll the dice with a trial. Guess what? This can hurt a consumer who just wants a quick reasonable resolution to his claim. My opinion is that the lack or predictability actually hurts Plaintiffs as much as Defendants.

All this to say – you couldn’t be more wrong.

Congratulations, Ubu, you’re a reformist!

Right now litigation is “required” whenever one party decides to file a lawsuit.

Facts?!? Ha! A good lawyer never lets those silly things get in the way!

You want proof of that? Read a few of the entries from this site documenting ridiculous lawsuits.

The guys who used outdoor glue indoors and got burned when the water heater kicked on? THEY WON. The “settled” area of law there was that the LARGE PRINT WARNING on the can (which they admitted they read) told them not to use it indoors.

ALL areas of law are “gray areas” right now. Find the right judge or jury, and you win, facts, equity, fairness, public policy, and efficiency be d—ed.

Heh – “efficiency” – yeah, that’s a BIG part of our legal system right now, eh? ROFLMAO.

“Don’t whine when the judge doesn’t rule your way…its your own fault for not listening to your lawyer.”

Really? So, when I DO “listen to [my] lawyer” (and thee vast majority of other lawyers, for that matter), and I STILL lose (a well-documented phenomenon), whose fault is that?

However, predictability is not the only component of justice. There is fairness, equity, public policy and efficiency, just to name a few.

Unfortunately, what the author of this blog is describing as “predictability” is not the application of the law to a specific set of facts which yields a consistent and repeatable result.

It is a desire to have laws which yield only one possible outcome based on any set of facts.

Essentially, the author wants a cookie-cutter application of the law to fit all situations with the goal of immunizing organizations from law suits, with no regard to the facts of the case, nuance, fairness, or other well established principles of law and equity.

Most areas of the law are well settled. Litigation is necessary only when there is a dispute as to the facts. In areas where the law is unclear or unsettled, there is, of course, great uncertainty. It is one of the risks of doing business in the gray area of the law.

If you don’t want to run the risk of being sued, don’t operate in the gray areas…but don’t expect to profit as greatly either. Lawyers can only tell you what is legal, what is not legal, and what isn’t clear. If you decide to play in the “not clear” area….you must accept the risks. Don’t whine when the judge doesn’t rule your way…its your own fault for not listening to your lawyer.