Tort reform: Yea or Nay. (Reccomended reforms solicited.)

In the wake of the case of the $54 million pants, I figure it’s about time to bring the idea of tort reform back up for the Teeming Millions to offer their sage advice and views.

I’m going to being by putting out the follow things that I believe to be facts:[ul]
[li]The protections that currently exists for plaintiffs pursuing lawsuits that may be frivolous seem to be a bit high for a matter of balance. The expression I’ve heard, and even used, here on the Dope is that if you can meet the lawyer’s fees and court fees, you can sue anyone for anything. [/li]
[li]Anyone going into any court situation beyond small claims court planning to defend themselves has an idiot for a client. [/li]
[li]Being served for a frivolous lawsuit can happen to any legal entity: a person, a small business, or even GM. (The possible exception to that seems to be the various statutory protections for governments, which seem to be only partially effective.) [/li]
[li]Acquiring competent counsel for any kind of lawsuit is expensive. It may be less expensive for John or Jane Doe defending against a lawsuit claiming that their Mulberry tree is the font of evil and keeping their neighbor from sleeping at nights than it was for the Chungs, but it’s rarely an insubstantial cost. [/li]
[li]Frivolous lawsuits often take years to litigate, compounding the costs mentioned above. [/li]
[li]Class action lawsuits sometimes seem to provide no benefits to the class being represented, just to the lawyers involved.[/li]
[li]People have been harassed and destroyed using the legal system to act as a sort of bully forcing them to spend time, money and effort to defend against seriously warped views of reality. This is done both by individuals and by corporations, IMNSHO. The hugely inflated damage claims by the RIAA seem to be only a little less gross an abuse than the damage claims that Pearson made in his pants case. [/li][/ul]

Given these issues, can anyone offer support that they aren’t really problems?

If there is a general concensus that they are problems that should be fixed, what proposed reforms do the Teeming Millions support?

I have a certain fondness for the idea of making it easier for the courts to award damages and representation costs to the victims of frivolous lawsuits. But at the same time I can see just how chilling an effect that could have on what I’d consider to be legitimate lawsuits. To wit: Not only does a large corporation like GM have the deep pockets to afford superlative representation, but if one were to be socked with their representation costs, there’d be no way to get out from under that kind of levy.

Similarly, the other common “simple, easy” reform I’ve heard proposed is to cap awards. Which, again, has the problems of having to review the cap on a regular basis to keep up with inflation.

I’ve got no easy answers, people. I hope you can give me some that seem less fraught with risks.

I’m not sure the case of the $54 million pants signifies a need to reform tort law or civil litigation. As I understand it, the complaint was dismissed, the plaintiff has to pay his atty fees, and may be on the hook for the defendant’s legal fees. I’m not sure punitive damages - or anything else - are needed.

Flatly declare nobody’s life is worth more than $1 million.

I speak as a man who lost a firm a few years ago to something in the OP. The firm I founded at that time ran into an issue with one of the founders having an unenforceable non-compete. I didn’t know about it when he joined. I asked and he denied prior to his coming on board.

So we entered the market and won a contract. We got sued, of course. Our attorney’s told us the non-compete was invalid on the face of it for myriad reasons both gross and subtle.

But they delayed. It cost our opponents $750K to defeat us but in the end they did. We ran out of money to defend it. The judge was right on the fence for a summary dismissal but eventually decided to hear the case.

They were even fairly forthright that the goal wasn’t to punish the founder but to force us off the field of play. Worked, too.

So, personally, I wouldn’t mind seeing some sort of change there. But damn if I could tell you what.

Unless he’s socked for the defendant’s lawyer fees, I really do think something is needed. At this point, according to the Washington Post article I’d read about this case, the issue of compensatory claims for the Chungs will have to wait until all the appeals have been heard. Which is going to entail more lawyer time. And therefore, more costs for the Chungs, I believe. And even now, all that’s been said is that there is a possibility of compensatory claims for the Chungs. No guarantee of it.

And even that much compensation is pretty unusual, AIUI.

Jonathon Chance, do you think it’s fair for me to summarize your experience as having been more a contest of which side had the bigger pockets, rather than which had justice on it’s side?

Missed the edit window: Dinsdale, at the moment I can’t get a better figure for the Chung’s defense costs than the Washington Post’s “tens of thousands of dollars,” here. But if that’s not recompensed I think that it does go a long way to indicating something is seriously FUBAR.

Among the reasons that I believe explain why it’s so high, is that at one point Pearson was trying to make it a class action suit - which means, to my mind, that the Chungs had to start, at least, with a lawyer experienced in class actions. And any kind of specialized experience will cost a premium over basic experience in a field.


[li]The protections that currently exists for plaintiffs pursuing lawsuits that may be frivolous seem to be a bit high for a matter of balance. The expression I’ve heard, and even used, here on the Dope is that if you can meet the lawyer’s fees and court fees, you can sue anyone for anything. [/li][/quote]

Not necessarily. I think the awards for plaintiffs encourage the “little guy” to stand up to the “big guy.” Otherwise, Joe Citizen could get raked over the coals by “Big Business” and would not be able to get an attorney or afford any recourse without the added legal incentives. However, I realize these incentives can be abused.

[li]Anyone going into any court situation beyond small claims court planning to defend themselves has an idiot for a client. [/li][/quote]

No. I have a client that was essentially accused of stealing $1 million. I defended him and the parties are now settling for a MUCH smaller amount. Yes, he has paid substantial attorney fees and costs, but he has paid me much less than $1 million for the defense. For every $1 he spent on defense, he knocked about $27 out of the plaintiff’s claim.

Unfortunately, the rest of your points have merit. If you have two ordinary Joes going after each other or two small businesses, it sometimes comes down to who has deeper pockets to keep the attorney around longer. Once a party runs out of money to pay for legal help, they tend to fold. This is especially tough on the defense when you have a plaintiff hiring an attorney on contingency while the small defendant has to pay an attorney hourly.

Sorry, I seem to have been particularly fuzzed writing my OP. I’d meant to try to get across that pro se representation is a very, very bad idea. Not that having an attorney represent one in any matter of weight is any thing but the course of wisdom.

I think we’re on the same side on this point.

What you’re describing is a contract-law case. Tort reform is irrelevant to that.

How about the following idea for reform, grabbed straight outta my butt?

When a judge or jury decides a case, they may also decide on the frivolity of the plaintiff (and possibly of the defense, although I’m not sure how that would work). If they decide the plaintiff has acted frivolously, the plaintiff is liable for the defendant’s costs, up to an amount equal to the plaintiff’s costs. If the case has been taken on a contingency basis, the attorney who has taken the case is liable for an amount to be determined by the courts.

This contains three protections:

  1. It only applies in frivolous cases, not in all cases;
  2. It doesn’t take any longer to decide than the original case; and
  3. The little guy who stands up to the big guy faces a much smaller risk of being squashed by tremendous fees, facing instead only the risk of doubling his own fees.

What do folks think?


Frivolous lawsuits are routinely and summarily dismissed at the 12(b) stage with little expense on the part of the defendant. Even if such lawsuits are pending for a year or so before dismissal (and I’d say eight months is about standard, at least in the federal district court in D.C.), they require almost no outlay of the defendant’s time or resources during that period except whatever is necessary to draft the initial motion to dismiss. If the lawsuit is truly frivolous, the defendant doesn’t even need to file a reply to the plaintiff’s opposition.

I think the system works exceptionally well at weeding out meritless claims both early and often, despite the occasional ballyhooed exception.


That’s already built into the system in large part, thanks to Federal Rule of Civil Procedure 11 and many statutes providing for the recovery of attorney’s fees in the event of frivolous suits.

My butt is smarter than I thought!

Are there limits on the attorney’s fees that can be recovered? For example, if I sue Microsoft for beaming consumerist thoughts into my head, can Microsoft spend a million bucks in attorney’s fees to defend the case and then stick me with the check?


take the lost pants case: how on earth could ANYONE suffer a $54 million loss, due to a $75 pair of pants going missing? If you buy a car, and the car dies during the warranty, you are due compensation 9getting your car fixed or replaced). but the car company id not required to give you a brand-new car (in exchange).
Its the utter absurdity of a $54 million claim-couldn’t common sense be invoked?
And WHY wasn’t this case IMMEDIATEY dismissed 9and remanded to small claims)?

Gadarene, I know you’ve stated that the $54 million pants suit is an abberation, but can you offer some guesses for why it wasn’t weeded out at little cost to the Chungs, the way you’re saying the normal procedure would be?
BTW, LHOD, sounds good to me.

I don’t know. I’m not familiar with Judge Bartnoff (although she seems nice, from what I’ve heard) and I don’t know the grounds on which she denied the initial motion to dismiss (I assume there was an initial motion to dismiss). Different courts do things differently. In the United States District Court for the District of Columbia, it’s very much a motions practice—most civil suits are decided at the motion to dismiss or motion for summary judgment stage, and an actual civil trial is fairly rare. (In the year and a half I’ve worked here, the chambers I’m in has seen, I think, two.) I also don’t know where the guy got his $54 million figure from. If this was in fact an attempted class action (as someone adverted to above, I think), then that number might simply have been some pie-in-the-sky figure that bore no actual relation to the merits of his underlying claims. That is, if the gravamen of the suit itself was that they committed a tortious act by losing his favorite pair of pants or whatever, and he sought up to $54 million as a result, then the denial of the motion to dismiss might simply have been predicated on the fact that his claim regarding the pair of pants was not so clearly meritless as to be thrown out on the face of the complaint’s factual allegations.

If that makes sense.

The thing is, there’s almost always a good reason for courts to do what they do, and this reason is usually (a) well-grounded in the law, and (b) specifically, well-grounded in legal provisions about which laypersons (or lawyers not involved in the case) know little or nothing, making it hard to gauge the merits of a particular case from the outside.

Judge Pearson arrived at his $54 million figure by applying the penalty structure of a local consumer-protection law. I’m not exactly sure how or why the law applies to his damages, but that’s where the numbers came from.

I would take the opposite view in the folllowing situation and its brethren. It is my understanding that in the Ford Pinto case Ford knew that the car was unsafe due to the (mis)placement of the gas tank and that lives would be lost as a result. They did an accounting of the average award for lost lives and an educated guess as to the number of lives that would be lost and determined that it was more cost effective to suffer the lawsuits and not move the tank. I submit that in a case like this where serious injury and/or loss of life is a known potential result of a known flaw in a product, the failure to make a timely correction or recall of that product should make the company liable to the full extent of its worth. If that is too great an amount to give to one plaintiff or to divide among the many plaintiffs, the remainder could be put in to some kind of fund for victims of torts who are unable to recover for sustained injuries due to the defendant’s lack of funds. Further I believe that directors who approve such cost effectiveness or knowingly take no action to prevent it may also be sued individually.

Wouldn’t they be guilty of corporate manslaughter?

Yeah–my preference would be that in cases in which people in a corporation engage in an illegal activity that they know is likely to result in death, they be treated by the criminal system just like anyone else who does so. First degree murder charges seem appropriate for such callous behavior.