Comments on: Shyster-Proofing the Courts (Tips for the Tort Reform Crowd)

By: Chris

Chris — Fri, 14 May 2010 21:32:54 +0000

For a slightly different perspective I’m a trainee solicitor in England working in claimant department and whilst the common law basis of our legal system has many similarities there are quite a few differences, especially in PI.

#1 was tried in employment disputes in England recently and used judges to do the mediation with the same intent and wasn’t successful in reducing parties’ costs (http://www.lawgazette.co.uk/news/judicial-mediation-employment-tribunal-cases-falls-short). Although our employment tribunals don’t tend to award costs so there is less incentive to settling.

#2 I’m not used to being able to depose anyone since we exchange witness statements but have provision in the rules (and usually backed up in court directions) to raise questions in writing. Since oral evidence of whores^H^H^H^H^H^H^Hexperts isn’t that common for anything but the most serious of cases that’s the best we manage. Although anything worth more than £25k both sides can get their own experts.

#3 Never looked at frivolous litigation but since we have a loser pays system (even on interim/interlocutory matters) and tend to get costs orders – which are primarily lawyer’s fees and disbursements – lawyers tend to be punished by being ordered to pay the other side’s costs or losing their entitlement to recover costs from the other side despite being the ‘victorious’ party.

#4 Yes, please! We’ve only been able to advertise since the early 90s and referral fees were only legitimized early 2000s (before then there we scams to try to get around the prohibition) and they are now a larcenous sum. Lord Justice Jackson was commissioned to report extensively on our civil costs system and that’s one of his few proposals which, if implemented, would not hugely unbalance the costs system.

As we have a loser pays system and most PI works on a conditional fee basis running frivolous cases just isn’t worth it for us. Despite that a lot of insurance defence firms have specialist teams addressing fraud issues apparently with great effect.

The side effect of insurers paying damages and costs is that a whole body of law has developed purely dealing with the costs of litigation.

Just a few thoughts from a drunken long-time reader.

By: sam

sam — Thu, 09 Oct 2008 16:27:47 +0000

What are your thoughts as to the relevance of the tort for breach of statutory duty? Does your country even acknowledge an action for said tort as mine (Australia) does?
PL: I think that’s strict liability here. Generally, the less torts the better. But then, there are some needed restraints on corporate excesses, so we do need some of those unfortunate statutory constructions.

By: Max Kennerly

Max Kennerly — Tue, 23 Sep 2008 10:03:49 +0000

Hello,
I’m a Philadelphia trial lawyer who represents plaintiffs, the target of lots of “tort reform” attacks. I’ve posted a point by point response to your for recommendations over at my litigation and trial blog, linked to in this comment.
I don’t think your proposals would make a substantial impact on the number of frivolous suits, while two of them could cause substantial damage. Indeed, I would bet that the elimination of referral fees would actually increase the number of meritless suits filed, as it would encourage inexperienced attorneys to test their luck on cases, rather than appropriately referring them to experienced attorneys for a thorough review.
I’d be happy to know your thoughts about my response. Good luck with your book launch.
PL: Thank you. I’ll digest and respond to your points. I only ask that you give me a bit of time as I am stretched for the next couple days.

By: Tortfeasor

Tortfeasor — Mon, 15 Sep 2008 00:23:31 +0000

I like the website a lot, it is great stuff.
On your “pass this on to someone” part, I know a few people, and, when, mentioning some of this stuff in passing they seemed intrigued. Even though they largely agree with you, they can’t really bring you to their bosses as a citation for obvious political reasons (again, your stuff is great, but “square society” might take issue with you in some ways).
I was wondering if you have any outside sources/legal scholars that you know of recommending the same or similar things? Any comparative studies of total caseloads after reform in different jurisdictions? Also, how much of this would apply at a federal versus state level?
I know you have a lot going on, so if you don’t know of such sources off the top of your head, you certainly don’t need to dig. However, I would like to pass these ideas up the chain.
PL: I can’t point to any specific academic papers. I selected these ideas and wrote about them in a sort of funny, general way because if I got into specifics I’d bore everybody, and I wanted the general concepts to be remembered, allowing others to flesh them out and come up with actual legislation based on their suggestions. I also wanted them to be easily digestible so that someone could pass them to the tort reform crowd to show them that if they’d stop focusing on big, easy fixes like damages caps and started attacking the court rules, they’d get a lot more done a lot more quickly.
But feel free to take those ideas, repackage them and sell them as your own. Buy a bunch of copies of my book for me if they garner you a bonus.
It wouldn’t apply too much at the federal level because the most insidious nuisance actions are by definition well under the jurisdictional threshold. This is directed at state courts that have not yet implemented these reforms.

By: Tom

Tom — Sat, 06 Sep 2008 01:43:23 +0000

I hope I not too late to comment. Anyway…
First, in California, which has more lawyers per capita than any other state, has implemented most of what you recommend. Mandatory ADR/mediation, experts can be deposed without leave of court, teeth in the malicious prosecution rules (look up anti-SLAPP).
Second, and more importantly, America forever claims itself to be a beacon of free-market capitalism. Yet, when it comes to holding the capitalists feet to the fire, suddenly, its the “good of society” as we attack lawyers. Moreover, given the number of careers that parasite off of human suffering, why is it that the idea of lawyers making money is somehow pernicious. Because the price of capitalism is sometimes you have to litigate? Tough sh%t. Yes, its bad when crooked lawyers engage in phoney shake-down lawsuits against small time businesses. But you know what, they get caught. And, given the imperfections of any system, I’ll take the imperfections of no “tort reform” over the imperfectons of reform.
But when major, multi-national corporations cry “frivolous lawsuits” and “we need tort reform,” no dice. All the benefits and none of the responsibility. In “Atlas Shrugged,” the premise was the “creators” should go on strike as protest against those that seek to “tear them down.” Hey, bring it on. I dare them.
PL: I was aware of California’s reforms. They are not present in all of the other 49 states.
Lawyers who bring dubious claims are pernicious by definition. Is abusing your license to shake money out of a “capitalist” any different than stealing from him at gunpoint?
The parasitic nature of the lawsuit industry doesn’t derive from the way it monetizes human suffering. It’s the way it claws money out of innocent people by holding them to outrageous negligence standards in the many cases that should never be brought.
Specious litigation is not the “cost of capitalism.” It’s a license leveraging scheme that feeds off capitalist endeavors.
You’re arguing absolutes here, by the way, where I was making a point regarding the volume of lawsuits. I have no issue with legitimate claims. It’s the tornado of silly, little frivolous claims and ludicrous class actions that are the problem.
As to your shot at Rand, your “bring it on” proposition is a little late. Capitalists have already gone on strike against the costs of doing business in plaintiff-friendly venues like Philadelphia by leaving town. That’s not the only reason businesses have been leaving those types of cities, but it’s one of them.

By: Joe

Joe — Wed, 03 Sep 2008 13:27:57 +0000

Note: I work for a plaintiff’s attorney at a PI firm and I’m a 3rd year law student.
Corporations need to do more of their legal work in house. I’m speaking mostly of insurance companies and other large corporations that are defendants in tort actions. Without adequate, competent legal counsel, they tend to get taken for a ride by outside counsel and, even on good claims, where they should pay out, they pay several times the damages in attorneys fees, and then go to trial and lose there. Or settle late.
Farming work out seems to be a corporate culture thing and a structure thing. I don’t understand why they don’t have their own counsel, since a lot of these corporations litigate the same type of issues over and over again. In any case, I thought I’d throw that one out there.
PL: There are a lot of “captured” defense firms owned by corporations. I think the reason for the outside entity has to do with liability and ethics issues. Mix the two and the corporation might become liable in ways it wasn’t previously. That’s just my guess.
That and no lawyer would want to toil for an insurer doing all of its slip and fall or auto accident defense.

By: digitalbroccoli

digitalbroccoli — Wed, 03 Sep 2008 12:24:21 +0000

Along the lines of the mediation idea, it’s such a shame that there isn’t a “department of common sense” that has to be consulted before any action can go further. Almost like a Minor League court system. I’m all for any idea that allows an outside, unbiased source to be able to say to the parties involved: “hey…this is a silly, frivilous action, and needs to be stopped. You don’t deserve elventy bajillion dollars for slipping and falling in a parking lot. Take that ridiculous fake neck brace off and go home”.
the system is so broken, and noone wants to hear any good ideas that would change it. How depressing.
PL: The system isn’t broken. The system is geared by lawyers donating money to all the governmental players in the system to ensure the blind spots and loopholes on which those lawyers feed remain open. The system works perfectly for lawyers. If people want it fixed, they need to realize that the power of lawyers is largely illusory. Everyone’s afraid of lawyers, but recall, there are only a million of us.
We can easily be overcome.

By: Diego

Diego — Tue, 02 Sep 2008 21:04:20 +0000

PL,
good ideas, but please be a bit more specific. otherwise, the analysis suffers from simple inapplicability and the non-lawyers get confused.
i’ll presume you are talking state court here, else #1 and #2 do not apply. in federal court, one must to endure the ‘ENE’ (or whatever acronym chosen by a given District) for the early neutral evaluation. basically mandatory mediation, altho lawyers run the show. still, it’s there so maybe tweak it to be like the grand jury scenario you propose. and toss in something like California Code of Civil Procedure 998. i play in federal court, so i could be off on the cite, but whatever. this law penalizes a party who forces a trial only to end up with less than they were offered in settlement. experts are amenable to deposition under the FRCP, so chuck #2.
further, you are talking civil suits, but some of the comments address criminal cases. let’s tackle these civil reforms before we get into the issues of crimial justice system, like prosecutorial discretion and the failure of the penal system on all levels.
back to the reforms. how the fuck are you gonna convince 50 legislatures to adopt ‘em? some folks groove on the concept of the 50 states being li’l laboratories that experiment with policies so the federal govt can chose the best ones. but in reality, that doesn’t happen. look at the drinking age – that was forced on the states, else they lost highway funds. best to acknowledge this fact. go to where the big-stakes cases are and change the FRCP…let the states follow. rather than a ‘race to the bottom’ like DE corporate law, it’ll be a race to the top.
put that in yer pipe and smoke it.
ps- thanks for all the great reading. found tucker’s site and then your original blog while procrastinating maybe 5 yrs back during 3L and studying for the bar exam. am a 1%er, but mask it during normal business hours to bring home the bacon. lookin forward to your book.
PL: This is a website for all sorts of readers. Any more specificity and I’d put the reader to bed and lose the value of the general ideas offered. People get the thrust of what I’m saying, lawyers and non-lawyers. It’s applicable where it’s applicable and it’s not applicable where it’s not. I can’t write for all fifty jurisdictions or put together twin articles to deal with fed and state issues simultaneously in this medium.
As to my comments, I respond to what people write. If they comment about jazz here I’ll comment about jazz.
I’m not convincing any legislators to do anything. I’m offering ideas others can flesh out and build into policy. Or not. Think of it as seeding clouds.
I think the rule you’re talking about refers to “Offers of Judgment.” They do little to deter plaintiff’s claims.
Thanks for the compliments on the writing. Happy to offer it to you.

By: FrattyLite

FrattyLite — Tue, 02 Sep 2008 15:28:16 +0000

PL -
We agree in many areas, but apparently your typical client is a more well to do business or the insurance carrier. Your proposals are fantastic for Federal Court, but are potentially problematic for state courts. Thus, the Ham & Egg Lawyer has a slightly different experience.
#1 – My point was not to put the mediation decision in the hands of the litigant’s counsel but, in theory, the nuetral judge. Too many cases involve nut jobs on one side or the other (many pro se).
#2 – The PI Factories are willing to take some of these losses. Some of the smaller time guys, seek to collect these funds back. I had to turn down doing that type of work from smaller PI lawyers, twice.
#3 – We’ll just have to agree to disagree on that minor point. I can’t tell you how many consults I’ve had with people who just want to sue because they have been sued (again typically small businesses, w/o internal legal departments, or individuals)…
#4 – Ok, you win. National commercials asking if you have been injured by Redux will still flood the TV at 15%.
Love the blog. Like these ideas. (waiting on my 4:30 after my 4:00 cancelled).
PL: No, we don’t differ that much. I’ve worked in wildly varying areas…
As to your points, I think exhausting the assholes who like to file lawsuits by allowing the person on the other side of each claim and counterclaim to whack them with frivolous litigation damages is the best solution in the world.

By: FrattyLite

FrattyLite — Tue, 02 Sep 2008 09:11:09 +0000

Not bad reforms, but some Devil’s Advocate (not Al Pacino, just a phrase) comments:
1. Mandatory mediation sounds great, in theory but is not practical in other areas of the law, and in specific cases. Maybe an initial screening by a Judge for Mediation should be mandatory. Domestic Relations Cases have seen this trend, but sometimes causes violent people to be partnered in a closed room with their victim, same in tort litigation based upon violent or criminal act.
2. Expert Depos – Thankfully PA is in the minority. However, the downside is actually fattening the pockets of the Expert Witness, who will surely charge for their time. Plus who pays this expert’s exhorbitant fee for the depo (typically at $300+ per hour). If it is the plaintiff, you exclude those who might be ligitimately injured but without resources sufficient for this aspect of the litigation process (yes, typically plaintiff’s counsel fronts expenses, but if no recovery, the plaintiff still has to pay….)
3. Frivolous Litigation Claims – Like the holding of expert “whores” feet to the fire. This may, however, only encourage more litigation, though in a different form. Defendants are often just as angry as the plaintiff (if not more so) and every case that results in a defense verdict will lead to a new piece of litigation (almost without exception).
4. Referral fees are basically evil. Though not as widespread where I practice, the idea that 2 different attorneys get to feed at the trough, does encourage outsized settlement demands and encourages avarice in the small dollar claim. A cap (applicable to the referrer) of 5% of the attorney’s fees received by the actual litigator (further capped at $1000.00 max if recovery is substantial enough) might cut the referral industry to size.
Mediation should be more widespread. Expert “Whores” are more evil in many ways that the “crazed ambulance chaser” that society moans about most. Depos of experts should be freely done, but some resolution on the expense of these depos needs to be addressed. Maybe also a cap on the number of depos to be done by both sides would discourage excessive hourly billing (once had simple slip & fall where counsel for a co-defendant deposed 24 witnesses…).
All in all pretty good thoughts.
PL:
In order…
1. Cases are screened for mediation in many jurisdictions. Sadly, the process when engaged is usually a joke because it is lawyer-controlled. I am talking about a mediation where the mediator has a chance to get into the client’s heads and shut the case down before the lawyers take control. I’m not concerned about the violence issue. I find most litigants outside family court are shrewd, rational and calculating sorts.
2. In personal injury the PI lawyers, not the plaintiff, pay the expert costs. In commercial work, the clients can afford the excess expert costs.
3. Any uptick in frivolous litigation claims would be washed out and then some by the considerable decrease in frivolous plaintiff’s claims.
4. Agreed on everything in your last two paragraphs except that I think capping referral fees at 5% would be a bit too harsh, which is why I advocated 10-15%.