A few more thoughts on discrimination cases (since I deal with them every day):
Of course this is incorrect - if you file a frivolous suit, you can get hit with attorneys fees and costs in most jurisdictions.
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Not a risk that I take. Or any of my buddies who do the same sort of stuff as me. It takes a lot of time and effort to file a lawsuit.
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For what it’s worth, the reverse of this situation happens a lot too. i.e. a good performer gets fired because of discrimination and the company claims its because he or she is piss poor. In fact, in just about every discrimination case I’ve ever seen, the employer claims that the fired employee was a lousy performer. Why aren’t people screaming for companies to be sanctioned for advancing frivolous defenses in these cases?
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I wish somebody would give me a list of companies that will offer a $30,000 settlement to anyone who files a discrimination lawsuit against them. Because I haven’t encountered any.
I remember reading a study that claimed the national average tort award was around $35,000. I will try to find a cite, but I doubt it is available on-line. The point of the study was to show that people have an overly inflated view of what damages juries actually award. Most of the crazy verdicts are reduced on appeal anyway.
How about if the Judge was given the opportunity to award court costs and legal fees against the loser? As it would be at the judge’s discretion, legitimate cases would not suffer unduly, while frivolous claims would be punished properly. Or is this already in place? - I do not know much about the American legal system.
Unlike other kinds of damages, which compensate the plaintiff for harm suffered or otherwise remedy an injury, punitive damages punish the defendant for past misconduct and deter the defendant from future misconduct. Punitive damages are generally available only for misconduct that is intentional and outrageous, and shows a deliberate disregard for the rights and safety of others; they are usually not available, for example, for a breach of contract. To recover punitive damages, a plaintiff must generally meet a higher burden of proof–clear and convincing evidence, as opposed to a preponderance of the evidence, the standard in most civil claims. (The plaintiff can still prove the underlying claim and recover compensatory damages by a preponderance, but must meet the higher standard on the claim for punitive damages.)
Um, cite please?
From where I sit, this is completely wrong. There are tremendous disincentives to filing weak or frivilous claims. Lawsuits are expensive, even for the plaintiff. Contingent fee contracts that I am aware of almost always require the lawyer to front all costs and provide that if the client receives no money, the lawyer is stuck with the costs. I don’t know the finances of all this, as it isn’t my money on the line, but the sums I’ve seen spent in the early stages of litigation are staggering. If we hoped to recoup them through frivilous lawsuits we’d be a lot dumber than I suspect we are.
If you can explain to me why I should start to file weak or frivilous claims, I would love to hear it - I could use the money. And I’ll echo lucwarm: please introduce me to defendants who offer money just because they are sued - I’d also like to meet them.
Again to echo lucwarm, this doesn’t correctly describe plaintiff lawyers’ incentives. No fees also means unrecoved expenses - this is not a good plan for staying in business.
Plaintiff lawyers have tremendous pressures to take cases that are likely to prevail. Defendants these days hire good defense lawyers who vigorously defend cases. I’m willing to bet that defendants have always done this.
I don’t know when you worked for this guy, but in many jurisdictions those days have passed. In today’s environment, I believe this guy would find himself on the wrong end of an angry judge. Judges don’t like abusive discovery - hell, judges don’t want to play referee to discovery disputes. Judges want lawyers to act like professionals. If a judge learn of these sorts of abuses, your boy’s frivilous lawsuits will get more expensive to prosecute.
Overall Whack-a-Mole, I get the impression that you do not understand the realities of the present legal system. You are correct that some plaintiff lawyers are wealthy, though you don’t seem to understand how that happened. You propose a solution without first determining whether there is a problem. By this, I eman studies that prove health care is better and less expensive in states that already impose limits - not just the insurance industry blaming it on lawyers. Although I don’t have a cite to hand, I understand that the majority of lawsuits filed are by companies against companies. Personal injury lawsuits are not out of control. Malpractice lawsuits are not out of control, though insurance companies are screwing doctors. (For example, a story by Phil Galewitz in The Palm Beach Post on 01/29/2003 reports that Florida’s proposed $250,000 cap on pain and suffering damages in medical malpractice claims will not cause insurance companies to reduce rates unless and until it is upheld on appeal, and then the reduction would be on average 16%. Also, the West Virginia legislature does not think that caps will lower rates or keep doctors from leaving the state.) You haven’t presented any reasons to limit contingent fees other than that some lawyers make a lot of money. That doesn’t strike me as reason enough.
Some of the no-fault auto insurance reform programs suggest a 15% cap on contingency for cases settled before trial. Not strictly applicable to the OP, but interesting as involving a closely related field of civil suits.
Anectodally, in my (limited) experience, this has been almost the reverse. I have been a class member in (I think 4 or 5) class actions. My total recover has been diddly-squat. Reading the class settlement documents, I have noted that there have been small awards to the class representatives, token awards to the other members, and large fees for the class attorneys. In these cases, the attorneys have been the instigators, have found the class representatives (on one occasion advertising for them), have taken the risks and done the work, and have reaped the awards. The clients were not a major factor in the process.
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*Originally posted by Robb *
Um, cite please?
From where I sit, this is completely wrong. There are tremendous disincentives to filing weak or frivilous claims…/
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I’m glad to see people who have knowledge in this area taking on these arguments. While I do worry about excessive litigiousness in our society, I think it is important to recognize that we hear some very distorted arguments on this issue in the media because there are a lot of powerful organizations (big corporations, insurance companies, etc) who have a lot to gain by making lawsuits much more difficult to file and win. Yes, I know that the trial lawyers are also a pretty powerful, but they are not the only powerful folks, or even the most powerful ones in this debate (despite the impression one gets by reading the WSJ editorial page).
About 15 years ago I worked for a company in the accounting department. They noticed one of their branches accounts weren’t reconciling properly and was short. It became clear that someone their had their hand in the till. The accounting department ran its own sting operation. There were two managers who had the wherewithal (access to the safe and such) to pull this off. Accounting narrowed it down to one particular employee.
When presented with the information the employee (African-American female) turned around and filed a discrimination suit against the company. Understand…the evidence against her was compelling. I doubt it could have been better without a videotape of her stealing the money. The company consulted its attorneys and they replied that a discrimination suit in this case was a toss-up and they may actually lose. The suit was estimated to cost the company $75,000-100,000 to litigate not to mention the disruption to business.
In the end they struck a deal. She would quit and not file anything against the company as long as the company did not pursue criminal charges against her. She also got to keep the $2,500 she had stolen up to that point.
Mind you the company in question was a not-for-profit organization that was extremely socially liberal and progressive. I can say from personal knowledge that they would be about as unlikely a place to find discrimination as you could imagine.
Anecdotal evidence to be sure but here is one case of which I had personal and inside info to that indictaed to me that a company that seemingly had all of the ‘right’ on its side still got faced down by the mere threat of a suit.
As to all of the attorneys here claiming that there really is no problem and taking exception to the suggestion that there is a problem I’d like to know what it is you think the insurance companies and corporate America are bitching about? I have no special love for insurance companies but where do things like this come from?
My brother-in-law is an OB/Gyn and he has related stories of areas in Colorado that are nearly devoid of OB/Gyn such that women going into labor need to travel over an hour to find someone to deliver their baby. According to my brother-in-law (who is admittedly biased in this case) malpractice suits can be levelled at the OB/Gyn many years down the road. Say a kid keels over at age 12 from an aneurism. The upset parents may sue (among others) the OB/Gyn who delivered the kid saying that something was done wrong in delivery that took 12 years to manifest itself and the kid died.
I think the attorneys here are playing fast and loose with the term ‘frivilous’ lawsuit. Certainly an overtly frivilous suit deserves to be punished by the courts and as such they are few and far between. But how hard is it to claim that a client’s case does have merit? Sometimes people just die. Sometimes people just fall through their own klutziness. Nevertheless an attorney can say someone might have been at fault and as such their client deserves compensation.
It is that sort of thing I am thinking of when suggesting limiting attorney’s fees in some fashion. While the attorneys on this board may be paragons of virtue in their profession can they honestly say that ALL of their counterparts are in the same class? Can they honestly suggest that there isn’t an entire class of bottom-feeding attorneys out there? while some here may turn away 80% of the clients that knock on their door don’t they think that 80% of those will eventually find someone to represent them? Heck…the 80-90% that lucwarm turns away is telling. It is indicative that there are many people out there scrambling to get some ‘free’ money via suing others.
Simple economics would say that if you decrease the money available (ala limit attorneys fees) the overall pool of attorneys will shrink. In an ideal economic model it should be the worst (or leats capable) attorneys who fall off the list. Clearing out the riff-raff in the profession seems like a good thing to me (of course there will always likely be some).
I have no quarrel with an attorney making a living and they are necessary to the well-being of our society. If they can get rich doing it then great. I just don’t buy the “Who us?” attitude as though there is nothing wrong that can’t be fixed or improved upon.
I want to note that I am not trying to take attorneys in particular to task for having a portion of that group being an unscrupulous bunch. Any profession is going to have its bad apples. However, unscrupulous attorneys in sufficient numbers seem able to cause systemic damage to the United States as a whole and as such may be cause for action (such as limiting fees) in order to correct or at least mitigate the damage that can be done.
Perhaps things have changed today. I worked for this guy back in the mid-80’s. However, I would wager that it is still possible to walk the line of abusive discovery such that an attorney can be a major pain in the ass to the company/person they are after (on behalf of their client) without unduly angering the judge. The attorney I worked for didn’t ask for anything he wasn’t allowed to ask for. He merely made use of the system and the rules therein to his benefit. I doubt even today it is all that difficult to stretch a case out longer than necessary and ask for things in discovery that the attorney (privately) doesn’t really need.
I do know that companies will file lawsuits in order to hamper competition more than over any real feeling that a wrong has been done that needs fixing. Recent reports I heard on NPR talked about this in the drug industry. The way things are setup when a patent is about to expire the owner of the patent will sue a competitor who is trying to break into the market. Once the suit is filed no one can enter the market for that product till the suit is settled. Often that can take several years. In the meantime the original patent holder continues to make big bucks on their product because there is no competitor for their product.
Of course, all of that is within the law as they are written so some may say that aiming at attorneys is the wrong approach and it is the law itself that needs revising. I agree in this case (not to mention that limiting attorney fees as I suggest would have zero effect on this) but I mention it to support the idea that there are indeed many who use the legal system as a harrassment tool to further their interests even when no particular wrong has really been committed. Is the suit frivilous such that a court could sanction the attorney/client for filing the case? Nope. Does that therefore mean the case has a lot of merit? Nope (in this case the suing company seems to invariably lose but it doesn’t matter to them…they got several more years of profit they otherwise wouldn’t have had).
Try proposing legislation which structures attorneys fees AND which at the same time structures insurance premiums, based on the amounts of actual claims paid by insurance carriers (thus limiting the ability of insurance industry to profit from its business). Then see if the insurance industry (and its lackeys in the current administration) are still gung ho on the tort reform idea. (Fair’s fair, right? You want to limit attorneys’ ability to earn income, why not also limit that right for insurers? That’ll sure lower some premiums.)
If insurance carriers contend there is a malpractice crisis, then where is the evidence? Show me evidence of an increase in claims paid over the past decade (as opposed to an increase in malpractice premiums, which may only be evidence that insurance companies are gouging doctors).
Here’s what’s really going on:
Insurance companies have been heavily invested in the stock market. They lost their shirts there in the past three years, and now they are trying to make up those losses by raising premiums. At the same time, they are blaming the increase in premiums on a “runaway legal system.” If this scam works, the insurance companies benefit on both ends. They increase their revenue intake by raising premiums, and they decrease their costs by restricting the rights of injured persons to recover damages.
My impression (from the front lines) is that jury verdicts have been decreasing not increasing over the past 15 years or so (after adjusting for inflation). But perhaps I am wrong. If the insurance industry contends jury verdicts are out of control, where is the evidence? Shouldn’t the burden be on them to prove that malpractice awards have increased dramatically before we act on that presumption? Shouldn’t we establish that the system is broken before we “fix” it?
If anyone here contends that there is a malpractice “crisis” (as opposed to a malpractice premium crisis), please produce the proof. You can bet that if there were any proof, the insurance industry would have plastered it all over every available media outlet. Google to your heart’s content. I’ll wager you won’t find any proof; just hand-waving by insurers and the medical lobby.
I’d like to echo spoke-'s call for some cites showing the rates of damage awards over some significant period, say 10 or more years. All we seem to be debating is unproved assumptions.
The linguistic acrobatics are wonderful. Rather than addressing any concerns the ball is thrown back in my court to play with. Fine…fair enough. Since I started the thread I guess it is incumbent on me to provide some back up for my proposals.
I will note that the Bureau of Justice Statistics page was hard to read. Stats in one area seemed to conflict with what on the surface seemed like the same stat elsewhere (such as $318,000 given as the median award for medical malpractice in that year versus $285,576 given on page one…I’ll leave it to others to sort that out but I’m not sure the difference is overall important to this discussion).
I’m working on getting more info for comparison to those BoJS numbers but I’ll post this for now till (if) I find more.
I will note on this item that the same thing could be said of consumer groups and malpractice attorneys. If the insurance industry’s claims are all a paper tiger one would expect groups opposed to capping damage awards would likewise plaster their evidence over every media outlet they could manage.
One would think that in a free market if one insurer claims malpractice cases are reaming them and it was untrue then some other insurance company would step in and offer lower rates to get the business. Unfortunately you do not see this happening to the extent that many doctors quit their practices because they cannot find insurance that is affordable enough to stay in business (as noted in the link I provided regarding Las Vegas doctors). Is it not reasonable to suppose that somewhere some insurance company would step in to snap up that business if they could?
Whack-a-Mole: thanks for digging up some cites. I’ll dig into them.
I do note that Lawyers for Civil Justice appears (note: ‘appears’) to be a corporate and insurance industry mouthpiece, so my tendency is to treat thier stuff with grave suspicion.
The BJS stuff does look pretty interesting, though, but at first blush there appears to be no trend data on actual and punitive damage awards over any period of time. Although maybe its buried somewhere on that site, I’m just seeing point samples such as data from 2 months in 1996.
Wow. This is the best example of lying with statistics that I’ve seen in years. I’ll debunk or justify the first few only, as I’m still at work after an 11-hour day and would like to get home at some point. If being a lawyer and winning millions were as easy as you say, you’d think I wouldn’t have to work so hard, would you?
Point 1: State court personal injury filings increased 39%between 1975 and 1999.
Even assuming this is true, that’s what, about a 1% per year increase on a compound basis over that 25-year period? I bet that’s a rate of increase comparable or less than the rate for non-personal injury civil cases, which are often business cases filed by corporations. Damn, 1% a year. Sounds like a crisis to me. I wonder how much insurance premiums have increased over the same period?
Point 2: **Medical malpractice claims already make up 13% of personal injury cases in state courts. By comparison, medical malpractice claims make up only 7% of all personal injury cases filed in federal court. **
If an actual lawyer made this argument to support a claim that state-court filings are out of control, there’s no way he could be doing so honestly. Why not? Federal court does not have jurisdiction over medical malpractice cases, except where the injured patient lives in a state where none of the defendants live. That’s extremely rare, unless the patient got injured on vacation. I’ll repeat: Almost every med-mal case can only be filed in one place - state court. Although I’m not a tort lawyer, I know many who are. In 16 years of practice, I’ve never seen even one med-mal case filed in federal court. (While other injury cases are also unlikely to be filed in federal court, there’s a much better chance for non-med-mal tort cases to have diversity of citizenship.) Any lawyer who has any litigation experience understands this basic point, so its author knows he’s being misleading.
Point 3: Civil filings in state trial courts of general jurisdiction have grown by 21 percent since 1984, while civil filings in the U.S. District Courts have decreased 1 percent over the same period.
This is an increase of less than 1% per year for state courts. Also, most of these are business or other non-tort cases. I’d be glad to conduct a tour of the Daley Center (main civil state court building in Chicago) where this point is easily observable. As for the second claim, it’s simply untrue. Upon request, I’ll dig up a cite later when I have more time. The federal judiciary has grown substantially over this time, yet workloads have judges desperate for more help. Yes, some of this is due to the increase in criminal cases, but not all.
Point 4: **The median recovery in the typical medical malpractice action in federal court was $450,000 in 1996-1997. This amount was substantially higher than the median recovery for all tort cases – $135,000. **
My God! This is amazing! On average, the injuries in med mal cases are larger than tort cases generally?
No shit. Here’s just one example of why this is a nonsense statistic: Tort cases include your garden-variety fender-bender car accident where no one is injured. Insurance companies file huge numbers of these on behalf of their insureds every year. Many result in recoveries of a few thousand dollars. There’s no such thing as a few thousand dollar med-case. They’re simply too expensive to file and prosecute. The quoted stat refers to federal court, where the relatively small number of tort cases won’t include these small auto cases, but the overall principle still holds. When a doctor screws up, and the case is worth bringing, the injuries tend to be substantial and are often permanent. The same is not true of all tort cases. Further, the tort attorneys I know won’t even consider a malpractice case worth less than about $100,000. The expenses in a med-mal case (which the lawyer generally eats if the case loses) are many times greater than other types of cases. Expert witness fees alone often reach five figures. That potential 33% recovery doesn’t look so good when expenses may be $50,000 or more. Even if the case wins big, the attorney has to advance the costs over the multi-year life of the case. Finally, if this were a state court stat, the average would be lower. Even if a med mal case otherwise qualifies for diversity jurisdiction, it has to be worth $75,000 before you can file it in Federal court. That alone will skew these numbers.
These obviously biased claims make me question whether they have any validity at all, but even if some are true, they are presented in a misleading way.