Bill: “too risky for some actual legitimate claims to be filed, because if they are close cases on the merits and expensive to defend, they would not be brought in the first place because of the high risk of losing.”

If they’re that close on the merits, is it really such a problem to deter such cases? While it would deter a few barely-legitimate cases, it would benefit the many plaintiffs with stronger cases. Doesn’t that seem like a good tradeoff? Why do we want a public policy of encouraging people to bring weak cases?

I support loser pays, but jb’s point is important: many of these absurd cases win. Loser pays doesn’t solve that problem; we need substantive changes to the law, so that you can’t fall while skiing and sue everyone short of god for not telling you that gravity exists on mountains.

The real problem is, we hear about all these ridiculous cases where the plaintiff won some money. Until we stop those from happening, there’s no point in saddling defendants with further costs.

One idea I’d like to throw out, which would stop shotgun lawsuits, is “barbed filings.” Plaintiffs cannot unilaterally drop a case against a defendant without paying their lawyers’ fees. So if you named everyone who breathed on you in the last 5 years as a defandant, you’re stuck having to explain why each of them is at fault, and if any of them have money and a grudge they can refuse to be dropped, forcing you to argue to a verdict (which, because you have no case against them, you will lose and be liable for costs anyhow–and if you win anything from any other defendant, you have money to assess costs against).

Wouldn’t it be fairly easy for us to develop insurance for those cases? This is not that different from how many lawyers operate now. It would just involve a third party deciding how the risk was and how much they would need to to cover it.

And for small cases, would not the risk of bearing the transaction(legal) costs encourage BOTH sides to reach a reasonable accommodation? Plaintiff wants $10k. He might get it or he might be on the hook for paying the lawyers $2k. It the case is 50-50, he could expect $4K on average. On the dependents side, the math is similar, Might pay $0, might pay $14K. Expects to be out $7k. Of course, that 10K could be moved around by the jury so the numbers are a bit fluid and the two parties may feel the odds differ but it seems clear that there is a range of numbers that put both parties in a better position than rolling the dice at trial. Particularly if it would reduce that $2k legal fees.

I’m unclear on your point about the cost to defend. Should we allow plaintiffs to bring weak suits that they know will be expensive to defend since the defendant will likely settle so as not to incur those costs? In the current system, the suit ALWAYS costs the defendant which places a disproportionate burden on them to settle.

I’m not convinced there’s a big problem with the current system. There will always be cheaters, frauds, dishonest people, etc. in all walks of life, not just in the legal system. It would not be smart to overhaul the whole system just to deal with that minority.

The real question, for me, is whether the case is representative. If it is indeed representative, there should be thousands of cases just like it, and we may as well get to discussing those. If it’s not representative, then I’m not sure why we would dwell on it.

The judge could in close cases acknowledge that the case was close enough that the loser does not deserve to be penalized, but the norm would be that the loser, who caused everyone time and trouble by not folding their hand, should pay the other party for the problems they caused.

Perhaps that’s not quite fair from Day 1, but I would like to propose the following rule: At any time, either party can make a formal offer to the other party of a result. If they make such an offer, the other party can either accept or reject the offer. If the other party rejects the offer, and the case continues to trial, and the other party does not do any better at trial than they would have done if they had taken the offer, then they pay all legal fees incurred by the offerer after the offer.

There can be two of these offers live at a time, one by each party. For example, if the plaintiff offers to take $10,000 and the defendant counteroffers that they will pay $2000, then if the judgment is $2000 or less the plaintiff pays post-offer legal fees, if the result runs from $2001-$9999 everyone pays their own fee, and if it’s $10,000 or more then the defense was frivolous and the defendant pays post-offer legal fees by the plaintiff.

This proposal is half-baked, fees would have to not be inflated, and something would have to be done to define the fee in contingency and pro-bono cases, but I would like to open this discussion.

-dk

May I suggest a slight modification to his comment?

#7. While Pearson is too deluded to successfully use the justice system, and is thus a relatively minor player in it… tort deformers like Ted Frank will surely capitlize on this story while ignoring the major players who are stealing billions of dollars from American citizens under the protection of tort reform measures that give them lawsuit immunity.

It also shows that loser-pays is not the answer. Loser-pays wouldn’t help the Chungs here, not would it help most businesses sued by jackpot-seekers (who almost never would have the kind of money the businesses’ lawyers charge). On the contrary, it would make the system even more jackpot-oriented–plaintiffs could sue knowing that, if they won, their award wouldn’t be reduced by the amount they had to pay their lawyers.

Another solution that I don’t think will help is damage caps. Any damage cap that’s low enough to not serve as a jackpot target will be low enough to not serve as a deterrent against legitimate causes of action, especially against large corporations. And there’s really no one else besides the plaintiff to whom punitive damages can reasonably be assigned.

What is needed is to change incentives, so these frivolous (in layman’s terms) lawsuits are smacked down at the beginning rather than the end. I’m also really not sure how to do that.