The baseline expectations in our legal system are such that when judges cast a skeptical eye on meritless cases — going so far as to be “almost” hostile toward them — it counts as newsworthy. I discuss in my new post at Cato at Liberty. More: Bainbridge. For more on the prosperous legal niche of filing lawsuits seeking to block corporate mergers, and then collecting fees when the target agrees to settle in order to get the deal done, see Dealbreaker (“Plaintiff’s Lawyer Tax on M&A”), Fox Business and WSJ.
A year ago the city of Chicago announced a change in its litigation posture in claims against police: it would refuse to settle claims it did not consider strong and would prepare for trial instead. “In the past, the city often settled ‘defensible’ cases because the city’s legal expenses could far exceed the cost of a settlement.” Now the city law department is claiming “astonishing” success for the policy, citing a 50 percent project drop in claims against police. Plaintiff’s lawyers say their clients are handicapped before juries because they often have police records and that “the door has been slammed shut.” [Frank Main, Chicago Sun-Times]
We settled two lawsuits this quarter. In neither had there been medical negligence. It’s pretty galling to settle cases like these, but it’s smart. The deck is stacked against us, and you have to make the good decisions, even when it is bitter. …
The problem is that the newspapers are replete with cases where there is a huge jury award in cases where there was no malpractice. This is what induces us, and lord knows how many other medical groups, to settle cases which were well-handled. When there is no correlation between whether negligence occurred and whether you win or lose, the only viable strategy is to pick your fights very very carefully.
“There’s no incentive to pursue low-merits cases because opponents won’t settle them.” Wrong:
On one thing plaintiffs lawyers and defense counsel can agree: The cost of litigation, particularly discovery, has become the driving force in settling cases, not the merits, according to results of a survey of groups representing both sides. The joint survey, from the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System, found that 83 percent of the nearly 1,500 lawyers responding found costs, not the merits of a case, the deciding factor in settling.
The unfairness cuts both ways: some low-merit cases become worth filing because of their discovery imposition value, while some high-merit cases are made uneconomic to file because of the discovery burden they bring (Pamela A. MacLean, National Law Journal, Sept. 10).