That’s it. By accusing my lawsuit of being ‘frivolous’ you have insulted both my character and intelligence. This has caused me emotional distress, which has in turn led to a decline in my efficiency at work. This in turn means I will make less money and eventually end up homeless and selling my cornea’s just to get a bowl of warm soup (all in the space of what, 5 minutes?). I’m suing you, Minty, for every penny you’re worth! 
Darlin’, you can have every penny I’m currently worth. Figuring in the student loans and other assorted debts, you owe me about $15,000. And I do accept personal checks.
Personal checks? Great! Wabbit laboriously writes out a check for $15,000 and dates it Feb. 30, 2101 and promptly breaks arm patting himself on the back
Change “Darlin’” in previous post to “Buddy.” :eek:
A small town general practioner checking in with a few observations, all of which are probably pretty obvious.
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The U.S. has always been a litigating country. The N.R.A.'s propaganda notwithstanding, resort to law suits to achive ends was the first substitute for resort to gun- play. Just look at the flood of litigation over land titles in the colonial and territorial periods. Just as Colonel Colt made all men the same size, access to the courts also made all men equal. If social restraints kept you from hiding in the bushes and blowing a fatal hole through the local poltroon, you could drag him into the local court house with some assurance that the judge, or better yet the jury, would do right. As a matter of public policy this country has struggled to keep the courts open and to preserve fairness in the courts. This has not always been the case in the places our ancestors came from. All to often the courts in the Old Country were simply agents to carry out government policies directed toward keeping the rif-raf in its place and preserving power and wealth to those who had power and wealth. Exposure to litigation, even foolish and meritless litigation is one of the prices we all pay to keep an open court system.
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Demands for tort reform all too often take the form of implementing some device to punish people who lose law suits by, for instance, making the loser pay the winner’s lawyer and expences. This sort of approch has a certain seductiveness to it and is the approach followed in any number of other countries. It seems to me, however, that this approch cannot be reconciled with open access to the courts. In the face of the possibility of being stuck with runious expences in a winner-take-all system, what poor man will turn to the courts to vindicate his rights? Any one experenced in the lawyer business knows full well that it doesn’t take much to encourage a professional civil defense lawyer to run up truly outragious fees and expences. Any one expererenced in the lawyer business knows just as well that if an insurance company seen an opportunity to run up the expences in a winner-take -all system and thus present an object lesson to possible future plaintiffs, it will.
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Another aspect of tort reform is a demand for the abolition of contingent fees for plaintiff’s lawyers. From what I can see contingent fees may be unique to the U.S. Again, this results from the American bias in favor of open access to the courts. My experience is the contingent cases seldom result in a windfall to plaintiff’s counsel. By and large there is a pretty direct corrispondence between the contingent fee recovered and the actual amount of time and effort put into the case. The point is that without a contingent fee many people of modest means would be deprived of access to the courts.
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If the problem is the commencement of meritless law suits, let me suggest that the contingent fee ought to serve to reduce the number of such cases simply because in a contingent fee arrangement the lawyer doesn’t get paid unless the client gets some sort of a recovery. Clearly this has not supressed stupid or ill-advised law suits but it does mean that in stupid or ill-advised law suits the plaintiff if probably represented by a stupid lawyer who gives bad advice, IF the plaintiffs objective is really to recover damages. As other posters have noted, sometimes the object of seemingly frivolous cases is to use the descovery process to gain information that can not be gotten to in some other way, or to gain publicity, or to embarass the advicary, or to grind some other private ax. Some times the ill-advised litigant is just plain nuts and is proceeding on his own hook, without benifit of counsel. It is enought to note that there are plenty of devices to winnow out the meritless lawsuits in short order. Skilled counsel and learned judges know how to work those devices in the most cunning ways.
Is ther any way to make spell check work on this thing?
What you seem to be missing, Princhester, is that the system already has rules in place to prevent these lawsuits from taking place. Certain scum amongst the legal profession take advantage of the reluctance of lawyers to sanction one of their own for bringing a meritless case in violation of these rules. That the rules will get broken is no reason to hold of on damning those who break the rules.
The specific lawyers who brought forth these suits are worthy of contempt, and have broken various rules, which, though rarely enforced, they are expected to abide by. It’s not law school ethics lectures that are being forgotten, but the rules that lawyers are held to, as well as simple common sense.
While perhaps the system encourages this sort of behavior, the lawyers involved are still morally culpable for their own part in it. And they are making the entire legal profession look bad in some people’s eyes.
A couple of comments on matters raised by Jim Updegraff
Clearly you are right, a “loser pays the winner’s costs” system (as here in Australia) must provide some degree of additional resistance to meritorious but poor plaintiffs, which is a definite negative. But in practice it doesn’t seem to matter that much. It’s very rare indeed for a plaintiff to end up paying the defendant’s costs, because few plaintiffs take a matter right through to trial where they are not either very sure of winning or able to afford to lose. And prior to judgment, if you decide your case is a loser, it is just about always possible to back out by agreeing a settlement with the defendant on a “walk away” (i.e. no payment of legal fees either way) basis.
One point that you may not realise about the English/ Australian system of “loser pays” is that the loser does not completely indemnify the winner against their actual legal fees. They are usually awarded fees on the basis of some objective scale only, so that if you run an extravagant defence, the losing plaintiff is only going to have to pay a comparatively reasonable amount.
My final point on this topic is: what about the defendant? OK, no one wants the poor but meritorious plaintiff to miss out, but what about the poor but meritorious defendant, who under the US system gets clobbered for legal fees even if they defend successfully?
But, overall, as I say, you have a point, Jim. (Oh and by the way I usually type my posts in Word because it flows and edits better and has spellchecker, and then cut and paste into the text box on the boards when I’m ready).
You are right, if this point has been made before I have missed it. You will appreciate that I am not a US lawyer. If the scum in question are breaking the law, that’s different. My points in my previous posts have as you would appreciate concerned lawyers who are being lawful but unethical.
In every U.S. jurisdiction, there is (theoretically) no difference between an attorney acting unethically and an attorney acting unlawfully.
In federal law, Fed.R.Civ.P. 11(b) forbids the initiation of lawsuits that are (1) being brought for any improper purpose, (2) not warranted by existing law or a good faith argument for extension of existing law, or (3) include factual allegations that don’t have evidentiary support.
Each state has enshrined in law the Model Rules of Professional Responsibility, the Ethical Canons, or some variant thereof.
The problem, of course, is that the rules aren’t enforced. As has been noted, there is a natural reluctance by attorneys to refer opposing counsel to the bar for discipline, and an equally natural reluctance on the bar’s behalf to impose discipline (or ask a state court to impose discipline, depending on procedure in the jurisdiction).
An additional problem exists - quite often, bar disciplinary rules act as a shield rather than a sword. I often read through the local Bar Journal’s reports on disciplinary actions, and it strikes me that the action for which the attorney is being disciplined would be a felony in any other context. One example, from a case I watched closely (the plaintiff’s counsel disciplined there were opposing counsel in a case I’m on):
The plaintiff’s counsel brought a frivolous class action against a corporation, alleged race and sex discrimination. Even though frivolous, such a lawsuit can cause great damage to a corporation. The corporation, recognizing the possible damage and recognizing plaintiff’s counsel as extortionists, made a settlement offer, and included in it a “consulting fee” to plaintiff’s counsel, with the purpose of making sure that plaintiff’s counsel would be conflicted out of any future lawsuit against the corporation. (BTW, offering such a fee is itself a ethical violation.) Plaintiff’s counsel accepted, without telling their clients of the consulting fee. In effect, plaintiff’s counsel got 60% of the settlement, when their contigency fee was supposed to be 33%.
The court found out and hit the attorneys hard - disgorgement of all fees, suspension from the bar, a requirement to take ethics courses and to be supervised by superiors once the suspensions were lifted.
Great. The system worked. But it didn’t. Here, plaintiff’s counsel committed felony grand larceny by defrauding their clients (withholding a large part of the settlement). They should go to jail. But they won’t; the court has “handled” the attorney discipline.
:Sigh: Perhaps I’m overly pissed off. The case I’m on I mentioned before has been dismissed as a fraud upon the court (we’re in appeals now). I’ve been on it for more than two years, and by all logic, my client should have settled long ago - our fees have been astronomical. The system got lucky; my client has let his emotions rule, rather than business sense. In theory, my client will recoup his fees, as we’ve been awarded them. 'Course, all of the plaintiff’s counsel have now declared bankruptcy. :Sigh:
Sua
Er… no jeopardy attaches as a result of attorney discipline cases. Call your local district attorney and ask him why he’s not forwarded this matter to a grand jury.
- Rick
That’s the theory, but it turns out otherwise in reality. I’ve learned that DAs and U.S. Attorneys don’t like to go after attorneys - they say it’s too hard to get a conviction.
In the case I mentioned, the district judge referred a paralegal deeply involved for criminal investigation. Admittedly, the paralegal was the instigator of the whole business and deserves the greatest punishment [you can read more about him when I finish my book ;)], but the reason the judge referred him and only him was that the judge concluded that the court lacked the power to sanction a non-attorney.
In my case, the district court referred the same paralegal, the attorney and the plaintiff to the U.S. Attorney’s office for investigation under RICO and mail fraud. The U.S. Attorney’s office has done nothing in over a year. The rationale they’ve given me is that they don’t think they can win a criminal conviction - the attorney will just claim he was overzealous, not criminal.
There is some justice though. Since I first posted this morning, I received a Report and Recommendation from the Magistrate Judge recommending that my client be awarded $1.6 million in attorney’s fees. Particularly gratifying for me, the magistrate specifically noted that my time and fee rate was warranted (I had become a big issue in the fee award process). Now, of course, comes collection.
Sua
In re Princhester
Or sometimes, my dear lawyer, ignoring the actual discussion to address unbalaneced laywer bashing simply is an exercise in either setting up straw-men or perhaps just poor reading skills.
Else, address the motherfucking content or don’t bother mentioning it.
Insofar as I did not propose a specific solution, I would not be particularly surprised by anything.
In re using narrow legalisms, please do note that much of my commentary was aimed at our colleague who initially supported the concept of the war strategy lawsuit. Further, I believe, although my memory is vague in this Bacardi influenced state, that I did not indicate that I saw a contradiction between pursuit of opportunity and lawyerly attitudes, although I may have suggested that that does present problems for self-regulation.
Quite true, now we’re getting somewhere. Although of course I am reluctant to rule out US lawyers being a wierd anamoly without some sort of research in this area (sorry Sua, can you provide some blood. Perhaps we can do some PCRs to get to the bottom of this.)
Well, although there might be some plaintiff lawyer bashing in this thread, I think that most of this thread was not generalized bashing but specific criticism, which was more of less the point of my original intervention. Now, I understand a certain sensitivity to blind lawyer bashing – do a search with Wildest Bill and lawyers, motherfucker needs to be sued more often to be frank – but I don’t care for getting lumped in with the morons for no good reason.
SuaSponte it sounds like you’ve been having a tough time. I know the feeling. Sometimes things that other lawyers have done have made me want to kick my desk over, tear up my practicing certificate and go home and curl up in bed.
But after getting angry with them, I started getting angry with the system because pissweak ethics, and laws and rules that aren’t enforced, just result in the unethical taking advantage of the ethical.
Now, Collounsbury. Yesterday I decided that going through your witty clever insults wasn’t worth the effort but there is one thing that makes me curious. Seeing as how you love to pick out quotations so much, could you pick out the parts of my first post that caused you to imply that I had a holy priestlike attitude towards being a lawyer, or that these matters were too holy to understand in a wider context? I don’t see it. Unless it was perhaps the use of the term “layperson”?
My post was intended to be (and I still think it was) entirely pragmatic. I don’t have the attitudes that you ascribe to me at all.
What motivated me to criticize your position was seeing a number of posts in which various posters (probably lawyers) tried to explain how the holocaust action might actually succeed in some way (not necessarily by obtaining damages at trial, but in some way), and you castigating them for their narrow lawyerly attitudes. Now I don’t know enough about US tort law to comment on the holocaust action one way or the other though I expect that as SuaSponte says, it is a complete loser. But my point was that the action has been brought for some reason and was benefiting the plaintiffs or their lawyers in some way. Therefore, at a pragmatic (and not priestly) level, the narrow legalistic attitude displayed by the plaintiff’s lawyers is working. Perhaps it shouldn’t be, but it is. And in that context, I could have understood you castigating any poster who suggested that such actions should work but I felt it unfair for you to be castigating those posters who pointed out how it might work.
I suggest stepping out of your lawyerly persona and rereading your message.
Not how I read it.
Perhaps you need to reread the thread. I believe there was one lawyer who was supporting the concept. One. I castigated her for a common attitude that because litigation may be technically possible, that ergo it is a good thing for a court to take a crack at the problem.
The old problem of when your only tool is a hammer, everything looks like a nail. And thus my comment about me excluding lawyers from my area’s policy discussions, except when we need technical advice.
To my recollection I did not address, except perhaps in passying in re the non-applicability of civil law to a state of war in grosso modo, the actual
Working, yes in a narrow sense which I was critiquing. We’re addressing different levels of analysis. It strikes me as clear that this case is a classic example of non-optimal results.
I believe I was castigating this particular action, not the general concept of class actions. If I was less then clear on this point, then I apologize.
As far as I’m concerned, if that’s the best you can do to back up the attitudes you attributed to me, I’m not going to concern myself.
My dear lawyer, it’s not the best I can do, its what a reply to you is worth, that’s how the equation works. I’m all about marginal costs.
likewise