AerynSun, I think maybe you’re pretending not to understand this one, given the clarity of your other posts. Under joint and several liability, the plaintiff can proceed against any of the responsible parties for the full amount of the judgment. Then, if those parties have borne an excessive fraction of the burden, they can turn around and sue for contribution. Even in a comparative negligence regime, the defendant can pay more than his share of the fault - he may just then also have a cause of action against his co-defendants.
My own wacky torts professor believed that joint and several liability should always be imposed when the co-defendants had an opportunity to allocate the risk contractually before the accident. The argument is basically that even though it may not seem fair in the ex post world where the whole cost ends up falling on one party (for example, because the others are judgment-proof), it creates the ex ante motivation to allocate these things explicitly by contract, which is good for all concerned because prices will accurately reflect the allocation of risk. Whether Piper Aircraft and the tire company had the opportunity to allocate the risk ex ante in this case will be left as an exercise for the student.
While I agree that the problems of J & S liability are not the same as addressed in the OP, the two issues exacerbate each other.
The fact that the plaintiff does not have to pay the defendant’s legal fees increases the likelihood of a ‘shotgun’ approach to lawsuit filing. If the lawsuit is being filed anyway, the plaintiff has very little to lose by adding another defendant to it, as long as he can come up with any kind of quasi-plausible reason for that defendant being there. Especially if that defendant has deep pockets.
If plaintiffs had to pay the defendant’s legal costs in some cases, the plaintiff would be MUCH less likely to file shotgun lawsuits.
On the other hand, if Joint and Several Liability didn’t exist, it would be harder for attorneys to cash out on big paydays, making frivolous lawsuits less likely in the first place.
The problem with Tort reform is exactly this: Any specific rule can be argued against, but it’s the combination of laws in the U.S. that is leading to the wild proliferation of lawsuits.
I have my qualms about making the loser pay legal fees - I think that would have a chilling effect on the average person’s ability to sue a large organization or a wealthy person. After all, what if you decided to sue someone, and were told that there was a 75% chance that you’d win, but a 25% chance that you’d lose, and in losing have to pay so much in legal fees that you would be financially wiped out? Even if you were clearly wronged, would you take that chance?
If you had a ‘loser pays’ system, you would also have to have some sort of cap on legal defense costs. After all, a wealthy defendant like Ford might spend hundreds of thousands of dollars on even a trivial defense, because its battery of lawyers would make sure that all their work got charged out to the plaintiff. The threat of having to pay Ford hundreds of thousands of dollars would effectively insulate the company from almost all lawsuits.
ENugent: Your professor’s attitude is exactly what’s wrong with the legal system - he’s trying to use tort law as an instrument of social change, rather than a tool for compensation of people who suffer damages. Sacrificing justice for the good of ‘society’ is not the proper function of tort law.
I have to point out that one of the first steps on the slippery slope to Nazism in Germany was the co-opting of justice for the ‘good’ of the state. As soon as judges feel that they have a right to decide what would be in the best long-term interests of the country rather than in the immediate interests of the plaintiff and defendant, you have opened the door to a perversion of the law.
But what if I have a really good anecdotal story that I feel really strongly about? Won’t that fully support any weak arguement I make as long as a lawyer is involved in the anecdote?
Sam, I see what you are saying about the large corporation running up the legal bill. That could be a problem and wouldn’t be fair the little guy. But what do you think about my idea of having “loser pay” in situations where the companies involved have fewer than 50 employees? Companies that size would definetely try to keep their legal bill down(if that is possible I think they charge you a 1/4 hour if they think about your case on the can ).
I understand it, but I was addressing what I thought was the thrust of the Piper anecdote: that some Darwin Award wannabe can get 100% compensation from someone who was hardly at fault, despite his own egregious culpability.
As for J&S generally, yes, it is not fair. But if the major parties at fault are judgment-proof and the plaintiff is innocent, someone is going to unfairly bear the cost of the accident. I think it is preferable that someone slightly at fault bear the full cost than allow a completely innocent victim to bear it. Sometimes life isn’t fair, and the justice system has to do the best it can. Also, as you said, parties entering into joint ventures know how the system works and can plan accordingly. Does that address it better for you?
Bill, the main flaw in your reasoning is that you equate “losing the case” with “frivolous”. They are NOT the same thing.
In a civil action, the standard is “the preponderance of the evidence”. Which does NOT mean that the “loser” had “no” case, but that the “winner” had at least a slightly better case presented.
And, frankly, I would like to see some thing from ANYONE who can show WHO exactly gets sued. You seem to believe that small business owners get sued more frequently, or that it’s more devestating or whatever.
I would think it’s MUCH more likely that say “DOW chemical” gets sued, than a bunch of “Joe’s fish markets”. If the attorney is going on a contingency fee basis, why would they take cases primarily with no (in the venacular) deep pockets?
On the last page, Bill, you stated that you would get back to my questions to you when you had time, but that you really believed that I was a lawyer in disguise and wanted some assurance I wasn’t. I posted my “resume” as response, and am still waiting for your further comments on the issues that I suggested to you. Quoting from me here:
and regarding your suggestion that the loosing attorney pay all costs,
and
Please respond. thankyou.
{aside to the person who asked “why is fine gold called that” well, my daddy called himself a fine jeweler, which meant he dealt in gold and platinum, wouldn’t bother with any other metals. Further explanation than that would require me to ask him directly. Last time I asked him something from here (“gee dad, is there a reason folks usually don’t use surgical steel for things like rings”) his response was something rude about not bothering him with idiots and their idiotic questions. Dad hasn’t learned yet the fine art of getting along with others.}
wring, we’ve asked Bill for some kind of factual statistics cite before, and so far - nada. He just likes hearing himself rage against “all scum-sucking plaintiff lawyers” because he couldn’t run his business well rather than come up with facts to support his theories (or, heaven forbid, actually listen to rebuttals and perhaps change his point of view).
WB:But what do you think about my idea of having “loser pay” in situations where the companies involved have fewer than 50 employees? Companies that size would definetely try to keep their legal bill down
Bill, why do you think that a small company would try to keep its legal bill down if they felt that by spending more on their defense, they would probably win a favorable judgement and get their legal fees paid by the loser? Yes, a small company would probably not manage to run up as big a bill as a larger one, but I think it would still have a chilling effect on plaintiffs with reasonable cases.
It still seems to me that the best approach is for businesses, large or small, simply to use wring’s common-sense approach to legal costs as merely part of the cost of doing business. Yup, sometimes it’s going to cost you money because a plaintiff unfairly attacks you, even though they lose the case. Well, a lot of people have to spend money to protect themselves from the unfair attacks of other people; doctors have malpractice insurance, public figures have expensive security and bodyguards, etc. etc. They know that their position means that they’re more likely than the average person to be attacked (legally or physically) for no good reason, so they have to budget for the cost of protecting themselves from that.
So I think that business owners should just make up their minds to doing what wring recommended. Get some lawsuit insurance, check with your lawyer before firing people, whatever it takes to reduce your vulnerability, but accept the fact that you may sometimes have to pay legal costs when you didn’t do anything wrong. Part of the cost of doing business. I quite realize, btw, that the extra expense of this approach will be passed on to me the consumer, and I accept that; I would much rather pay some extra for your product or service than have a system where I’d be deterred from lodging a just complaint against you simply because I wouldn’t be able to pay your legal costs if I lost the suit.
(Note that this has no bearing on whether we should change the joint and several liability laws or adopt other kinds of tort reform: it’s just a declaration that “loser pays” would not be an improvement over the current system.)
Wasn’t the beginning of that post an indictment of joint and several liability? And I doubt that the DAW got 100% compensation - but Piper got stuck with all of that share of the compensation that should have been paid by the bozo who decided that parking a truck on the runway was a good communications technique.
I’m with you totally - I actually like J&S liability. I just thought you were ducking the question. Carry on…
The way I always heard J&S liability described from the Plaintiff’s perspective was to paraphrase Rambo - “Sue them all, and let the court sort them out.”
2d anecdote, when I was in private practice, I was amazed at the lengths businesses and private individuals went to to make themselves judgment proof. If you haven’t fddealt with it, you may be completely unaware of its existence. Gee, you’d almost think they were plannning to act in a manner that might cause them to to be sued…
Finally, the Chicago Trib oped page today has an essay by Steven Lubet (not one of my faves) discussing the contributoion of trial attorneys towards uncovering the Firestone mess. Featured passages such as:
“Of course, the lawyers only do it to make a buck. But the desire to make a buck turns out to be an extraordinarily powerful engine for the exposure of harmful products. Just as the profit motive can cause corporations to overlook potential safety hazards, it also inspires trial lawyers to uncover them.”
Bill, I haven’t heard it again recently. Have you personally had any unpleasant experiences with lawyers? Don’t just repeat yourself. Use bold and caps to imply you are speaking louder.
The problem with this argument is that people do in fact act strategically in response to applicable law, and if you don’t take that into account, you end up not achieving whatever it is you do want to achieve. Further, if you are trying to use tort law as “a tool for compensation,” you’re going to achieve that most efficiently by using joint & several liability. If you’re trying to achieve “justice,” well, justice to whom? Part of what the attorneys in this thread have been trying to explain is that justice looks very different, depending on who’s telling the story. Suppose that you were a completely innocent airport worker who got caught in that disasterous crash. Would it be “fair” for you to get 1% compensation, because the only defendants with money were only 1% at fault? Or should society as a whole bear that cost through increased prices on small airplanes when Piper passes the cost of the judgment through to consumers? Obviously the most fair rule is for those who are responsible to pay, but we live in an imperfect world, and we have to figure out how to deal with the cases where the insolvent cause damage.
I get the distinct impression that if Bill’s idea of “loser pays” had been in place when he got sued, and then he had to pay when he lost to his former employees for wrongful termination, he’d be here raging against such unfair legislation that hurts the small businessperson when they get wrongfully sued by blood-sucking plaintiff lawyers who won even though they were wrong! Waaah! (I mean, after all, Bill claims that he never fired anyone based on age discrimination, yet he settled those suits, probably because his lawyer… excuse me, scum-sucking lawyer thought he might just lose anyway, right?)
I vehemently disagree with this. The proper function of the court is to assess damages caused by negligence, and to force the responsible parties to pay compensation to the person hurt. If my negligence causes 1% of your damages, I should NEVER have to pay more than 1%. Anything else is pure social welfare. If you feel strongly that an individual who is hurt needs to be compensated somehow, then lobby for more government aid programs to injured people. But don’t make some peripheral bystander pay just because he has lots of money and was assessed to be marginally involved.
What if I’m injured and NO ONE is at fault? Should I go to court and have it pick someone at random to pay me? Obviously not. So where is my ‘justice’? Sometimes life isn’t fair.
In the Piper case (and in General Aviation overall), the cost of these lawsuits has driven the cost of product liability insurance through the roof, raising the price of aircraft to the point where only the wealthy can afford them. 30 years ago, owning a small plane was no more expensive than owning a new car. Today, a simple Cessna 172 costs $150,000, an engine rebuild costs $15,000, and Cessna only sells a hundred or so of these things a year (in the peak days of General Aviation, there were tens of thousands of new airplanes being sold each year). This is an industry that has been decimated by product liability and government regulation.
Almost all small aircraft fly behind either a Continental or Lycoming engine. These engines are substantially unchanged since they were designed in the 1930’s. Do you know why? Because it is outrageously expensive to certify new engines, and because innovation carries some risk, and in today’s legal environment the aviation industry can’t afford to take that risk. As a result, our airplanes are more expensive, less fuel efficient, and less safe than they could be.
And because very few new airplanes are being built anymore, our fleet is aging. Costs are slowly rising as these old airplanes become harder to maintain, and more and more people are being forced out of aviation. Aside from the loss of a great recreational activity, this has severe implications for the future supply of commercial pilots.
The social cost of excessive liability awards is essentially a giant transfer payment from the purchasers of all products to the people winning lawsuits. This is simply not what the legal system should be about. As I said before, if you feel strongly that society should come to the aid of injured people, lobby for government programs. Don’t try to implement social welfare through the back door of another system.
I never said this(at least I don’t think I did). I know they are not the same thing but it should apply non the less. If you lose a case, you should pay the other person’s legal fees frivolous or not.
Yes but like I said usually the jury is stacked in the plaintiffs favor. So there is advantage for the plaintiff attorneys right there.
There is not doubt that it is more devestating to a small business. For a bunch a reasons like the ceo of a small is going to spend alot more of his time finding crap for discovery, answering interogatories, time going to depositions, and time at the trial. Where the ceo of a big business will probably just get a report on how it is going by a subordinate. And it will hurt the smaller company more than the big one because its ceo has to be a way from the helm. You see a big corporation is like a big ship on where it will stay on course better because of all of the people that help run it so the ceo being at the helm constantly isn’t as important an the little ship that needs the captain to stay at the wheel.
I am talking about organizations that are bigger than “Joe’s fish markets” but not as big as Ford, IBM or ones like that.
[quote[So, which is it Bill? 12 flakes who can’t be trusted to see that you’re right, or 12 wise people who know a frivolous case when they see it? [/quote]
I really don’t understand your question but I will try to answer this way. Usually a jury favors the plaintiff over the defendent or a better word is “relate” to the plaintiff more that the defendent. So the stack is already weighted in the plaintiff’s favor.
Believe me they will take a case to court if they smell money. And actually my suggestion of loser pay will lower the cases in court so the case will go to court faster so you won’t have a bunch of people kicking the bucket before they go to trial like you do now. And you are right by the way you can not ever predict what will happen in court. I am just saying let the plaintiff attorney picks up the tab if he loses because he has the possibility of making money out of the ordeal when the defendent has “no” possibility of getting anything out of court process except a complete waste of time and money.
I do think that most of them are frivolous,not all maybe, but alot of mine were. I have noticed more people that are greedy and dishonest than you can imagine. I have seen more people just plain out lie on the witness stand if they think they can make a buck or two. And yes, I think this simple idea would do wonders to help the system.
I mean you(the defendent) have everything to lose and absolutely nothing to gain other than the court saying you were right. Boy oh boy you already knew that big deal. But if all of a sudden you wouldn’t have to factor in that big legal bill in the picture settlements would drop. Our insurance rates would drop. And we would all have more money in our back pockets except, of course, enethical plaintiff attorneys and their unethical clients. Then the plaintiff attorneys that were left would be the good ones(see I even agree some are alright) and take the legitimate cases to court and do fine. See everybody wins except the sorry people.
Sorry I have taken so long to respond but I gotta work sometime. And I still haven’t had a chance to get stats for you but I haven’t forgot either. I was just kidding around you about be a lawyer.
You are basing your entire arguments on your own lawsuits and have yet to provide any statistical evidence for your claims as quoted above, so shut your fat yap until you come up with some hard and fast evidence to support your claims. This is what this board is supposed to be about. If you feel the need to pontificate on your sorry legal life, do so in MPSIMS; otherwise, you just keep digging yourself in deeper.
Ok you want a cite here is one http://www.calahouston.org . Once you get there go to the bizarre cases or just look around at other things there. Then maybe you can learn something about the real world of litigation instead what you have been told by lawyers.
well, Bill then any proposal you have about who should pay is just simply WRONG. Listen carefully please. Try and pretend with me, just a moment. Let’s pretend that YOU are the plantiff. Some one has wronged you and caused you financial damage. They did it. They refuse to compensate you. You sue. BUT the day you go to court, your eye witness that would prove your case gets hit by a car and dies. No witness. The judge and jury find for the defendant. NOW, in addition to the original wrong and financial harm, you have to pay for your attorney AND for the defendants’ attorney, too? You wouldn’t have a BIGGER problem with that???
what I meant by this:
On the one hand you claim that juries are full of flakes that “weren’t smart enough to get out of jury duty” and on the ** other ** hand, you want this SAME jury to NOT only decide who is really right in the case, but to assess punitive damages to the other side bringing the suit.
I’m trying to suggest to you, that if you really believe that juries are idiots and can’t be trusted, then you shouldn’t WANT an additional penalty for the looser in any case. It is YOU who asserted first that juries make bad decisions, then go on glibly and say that in addition to the bad decision they already made, additional penalties go to the looser.
Do you see? Bill’s first premise: Jurors make bad decisions. Bill’s second premise: Once that bad decision is made, let the same jury make another decision about who should pay. Pick one. Either you trust the juries, in general, to come to a fair decision based on the evidence, or you don’t trust them.
And frankly, for the rest of it Bill, I’m done. If you simply continue to make unfounded generalizations without backing them up ( like “Yes but like I said usually the jury is stacked in the plaintiffs favor. So there is advantage for the plaintiff attorneys right there.” and " Believe me they will take a case to court if they smell money") this is not a debate, this is one group of people patiently trying to explain the concept of justice to you and you with you hands over your ears saying “yea but”.
and, as far as:
Sorry, I don’t buy it. You made that challenge TWICE. TWICE. The first time, I simply responded “no”. After the second and lengthier one, I responded more fully.
I leave you to ** Kimstu, Esprix ** and ** Dinsdale **
Yes, I follow you wring. But what you said is flawed for a couple of reasons. First if my eyewitness croaked, I would if I was smart drop the case. And if the attorney on the other side wanted to continue, I wouldn’t have to pay anyway “remember” my attorney would have to pay his hard luck but he had the chance of making money too. But my attorney and I knew going in to the trial there were some risks as you said trials are unpredictable.
Juries already assess punitive damages. You don’t know that? So if they can inflict punitive damages on the defendent why shouldn’t they be able to at least punish the plaintiff for bringing the case in the first place. Tell you what you brought up and interesting concept though. Why not leave it up to the juries whether or not the plaintiff should pay for the defendents legal fees. I think that would be fair. Right now it is absolutely not fair at all to the defendent.
Common sense backs this statement up. Usually juries are made up of employees or individuals. Every business man is usually stiked by the plaintiff. Or business people are to busy to serve on juries and bow out so you have employees glad to get a day off work to serve on the jury. And alot times the jury gives people money just because they think should at least get something afterall they are poorer than the big company.
[quote this is not a debate, this is one group of people patiently trying to explain the concept of justice to you and you with you hands over your ears saying “yea but”.[/quote]
All what the heck you doing? I have been in court and I have been depositions a hell of lot more than you so I think I know a little bit more about what is “really” going than you do. But you discount my experience so I am going to discount yours and exprix also.
So, what i can’t kid around with you twice? But just to be honest I just can’t figure why you care so much about this issue unless you were either an attorney or somebody that wants to sue people for money.
).