"Loser Pays"

[Boilerduff]

So, from a lawyers perspective, how do you go about reducing, or at least discouraging Frivolous lawsuits? Or is there no such thing from a laywer's perspective........

[Beaumont]

Amazingly, both sides would know this ahead of time and the plaintiff would be more likely to settle, which would net him more money.

 

Regardless, I am laughing because it's ironic fear mongering.

 

It is and its not. The hypo from the trial lawyer is extreme and unlikely to be common. The proposed system, however, will be used to threaten Plaintiffs into lower settlements on good liability cases. However, conversely, it cant be used by Plaintiffs to threaten Defendants into higher settlements in the same cases. That's not fear mongering, thats a fact.

[Beaumont]

So, from a lawyers perspective, how do you go about reducing, or at least discouraging Frivolous lawsuits? Or is there no such thing from a laywer's perspective........

 

Judges already have authority to sanction "frivolous" lawsuits. See the cheerleader thread.

 

Or, if you want a market solution, go with strict loser pays that goes both ways. Why not punish both frivolous lawsuits and frivolous defenses?

[Ursa Majoris]

The proposed system, however, will be used to threaten Plaintiffs into lower settlements on good liability cases.

And that's the whole and entire purpose. It is similar in it's way to the Supreme Court's rejection of class action lawsuits. It is one more way that business is collecting on it's candidate donations

[Azazello1313]

Or, if you want a market solution, go with strict loser pays that goes both ways. Why not punish both frivolous lawsuits and frivolous defenses?

 

I certainly agree with that. put it together with some sort of cap related to the amount in controversy, and I think you've got the makings of a decent system potentially.

 

edit to add: but can't plaintiffs already seek attorney's fees as part of their claim? and can't judges and juries already award them? would they need a new law allowing this to take place?

Edited May 10, 2011 by Azazello1313

[delusions of grandeur]

I certainly agree with that. put it together with some sort of cap related to the amount in controversy, and I think you've got the makings of a decent system potentially.

 

edit to add: but can't plaintiffs already seek attorney's fees as part of their claim? and can't judges and juries already award them? would they need a new law allowing this to take place?

See Ursa's reply above. There is no need for this current law, other than to potentially cut costs for companies, with little regard to whether the case is actually frivolous or not. I cannot conclude that it's anything but a leverage move...

 

Why else would you strip a judge of their ability to determine whether a lawsuit is actually frivolous, and further, require no due process to determine frivolity either... I agree with the above, this measure only stands in the way of legitimate lawsuits, because of the fear of this additional risk on top of undeniable proof.

So, from a lawyers perspective, how do you go about reducing, or at least discouraging Frivolous lawsuits? Or is there no such thing from a laywer's perspective........

I know it's probably unrealistic and I'm no lawyer, but like I said earlier, the best way to prevent frivolous lawsuits might be to be hold the lawyers responsible for pursuing cases with inadequate legal grounding... Not sure if there are any measures that have been proposed along these lines, but it's fair to say that most any other way that you claim to reduce frivolous lawsuits is either false, or stands in direct contrast to the way our legal system has been set up to work through due process.

Edited May 10, 2011 by delusions of granduer

[Beaumont]

I certainly agree with that. put it together with some sort of cap related to the amount in controversy, and I think you've got the makings of a decent system potentially.

 

edit to add: but can't plaintiffs already seek attorney's fees as part of their claim? and can't judges and juries already award them? would they need a new law allowing this to take place?

 

In most states, only certain kinds of claims can tack on fees. In most states, most personal injury claims cannot tack on a claim for fees and they cannot be added by a court or jury.

[Dutch Oven]

again, maybe his dumb ass lawyer should have looked at the case and advised his client to accept the $80K settlement offer.

 

Just because you advise your client of something doesn't mean they will do it. It's not like you can waterboard them until they say OK.

[satelliteoflovegm]

Maybe Joe the Landscaper can recoup some loses working in Israel for Pajamas Media.

[i_am_the_swammi]

Does not work that way. The "settlement offer" is not reduced when part of your case is tossed, by technicality or not.

 

It should be, and I would think a quality attorney will argue such, especially in light of this groundbreaking law that potentially punishes the 'winner" of the suit by paying the the loser's attorneys' fees.

 

The settlement offer ($80K) was based on the actual cost of the mowers ($100K) AND lost business ($50K).

 

If the courts rule that the lost business portion of the claim is invalid, then it would go to reason that the same percentage of the settlement offer would never have been offered, and that the courts, when determining whether the damages exceed the original offer, will take it into consideration.

[Furd]

I routinely spend much more than what I could settle the case for on defense costs. Happens all the time. Every lawyer who tries cases will tell you so.

 

True. One thing to consider in that regard is that, when parties decide to litigate, typically: 1) each party thinks that he/she/it is fighting the good fight to some or a great extent and that he/she/it will win; or 2) it doesn't matter to them.

 

I just tried a case involving a commercial construction project in which the owner paid the general contractor about $750k. A dispute arose over the last change order in the amount of ~$55k. The GC wanted just about the entire amount. The owner probably would have met the GC halfway. But they got into a big pissing match at a mediation.

 

So we went through discovery and tried the case. The loser has appealed. I imagine by the time that we argue in the court of appeals, the owners legal fees will be a relatively modest $110k. Other than big egos with big $$$$, guess what drove the case. A "loser pays" provision in the contract that said that the prevailing party was to be awarded reasonable attorneys fees and costs.

 

In certain circumstances, a "loser pays" rule will actually increase litigation. Both sides will be confident that they are in the right and equally confident that the opposing party will ultimately pay their fees. That $25k will be worth a squabble .

 

So, from a lawyers perspective, how do you go about reducing, or at least discouraging Frivolous lawsuits?

 

Now this is the big foist by insurance companies, big business, their political shills and the misguided.

 

Frivolous lawsuits don't really cost anyone a whole lot of money in the grand scheme of things. Certainly, they are not the scourge that they would have you believe.

 

To begin with, there aren't a whole lot of them. I've probably seen a few in 16 years. I'd say, at max, 1%-2% of tort cases filed, based upon my own experience and conversations with judges and tort lawyers.

 

It doesn't make sense from a business perspective for a lawyer to file a frivolous case, so they don't get filed. Defendants, by and large, don't pay frivolous claims, and if they do, its a nominal amount. A frivolous claim has to get by the defendant's motion for summary judgment, which is sure to come if it indeed is a frivolous case. And the judge that hears that motion is probably empowered under local court rules to sanction the plaintiff and/or the plaintiff's attorney for filing a frivolous complaint. If the plaintiff gets by the motion, the plaintiff has to convince a jury that the frivolous case is worth something. And if its frivolous, the plaintiff isn't going to get awarded much, if anything at all. Certainly, a significant jury award (or settlement for that matter) in a frivolous case is going to be an extremely rare event.

[Yukon Cornelius]

True. One thing to consider in that regard is that, when parties decide to litigate, typically: 1) each party thinks that he/she/it is fighting the good fight to some or a great extent and that he/she/it will win; or 2) it doesn't matter to them.

 

I just tried a case involving a commercial construction project in which the owner paid the general contractor about $750k. A dispute arose over the last change order in the amount of ~$55k. The GC wanted just about the entire amount. The owner probably would have met the GC halfway. But they got into a big pissing match at a mediation.

 

So we went through discovery and tried the case. The loser has appealed. I imagine by the time that we argue in the court of appeals, the owners legal fees will be a relatively modest $110k. Other than big egos with big $$$$, guess what drove the case. A "loser pays" provision in the contract that said that the prevailing party was to be awarded reasonable attorneys fees and costs.

 

In certain circumstances, a "loser pays" rule will actually increase litigation. Both sides will be confident that they are in the right and equally confident that the opposing party will ultimately pay their fees. That $25k will be worth a squabble .

 

 

 

Now this is the big foist by insurance companies, big business, their political shills and the misguided.

 

Frivolous lawsuits don't really cost anyone a whole lot of money in the grand scheme of things. Certainly, they are not the scourge that they would have you believe.

 

To begin with, there aren't a whole lot of them. I've probably seen a few in 16 years. I'd say, at max, 1%-2% of tort cases filed, based upon my own experience and conversations with judges and tort lawyers.

 

It doesn't make sense from a business perspective for a lawyer to file a frivolous case, so they don't get filed. Defendants, by and large, don't pay frivolous claims, and if they do, its a nominal amount. A frivolous claim has to get by the defendant's motion for summary judgment, which is sure to come if it indeed is a frivolous case. And the judge that hears that motion is probably empowered under local court rules to sanction the plaintiff and/or the plaintiff's attorney for filing a frivolous complaint. If the plaintiff gets by the motion, the plaintiff has to convince a jury that the frivolous case is worth something. And if its frivolous, the plaintiff isn't going to get awarded much, if anything at all. Certainly, a significant jury award (or settlement for that matter) in a frivolous case is going to be an extremely rare event.

well rush tells me different,so i believe him and all is lawering skills.

[Caveman_Nick]

Frivolous lawsuits don't really cost anyone a whole lot of money in the grand scheme of things. Certainly, they are not the scourge that they would have you believe.

 

in the interest of understanding this statement, are you referring directly to legal costs with this statement?

 

My company was recently involved in a lawsuit that was dismissed because the case was without merit. The time to resolve the case from when it was filed to when it was dismissed was almost a year. It's cost the company a lot of money and damaged us in ways that can't yet be calculated.

[BeeR]

I'll leave the example aside for a minute, since all that does is cloud the issue...

 

The issue to me is the same as the case in the other thread, that it assumes that any case that doesn't rule in your favor necessarily means you were frivolous in even pursuing the case. That simply does not hold true in many cases.

Bingo. I LOVE the idea of cracking down on all the BS lawsuits ie the intent or spirit of this thing, but near as I can see (and I admit I just glanced over it), this aint the answer.

[Beaumont]

Another from a fellow lawyer. This one is a bit more plausible.

 

Friends,

 

The title to this email could not be more serious. At a time when our state legislature should be working to address our state budget crisis, they are instead preparing to pass a new law that gives millions (potentially billions) to insurance companies by stripping away the rights of individuals and small businesses to bring a lawsuit when they have been injured or had an insurance claim wrongfully denied.

 

Under this law, HB274, the victim of a drunk driver could have to pay the attorney’s fees of the drunk – even if the victim WINS at trial!

 

I am not making this up. They are calling the bill “Loser Pays” but that name is a sham. The law is worded to guarantee that the insurance company wins no matter what.

 

In a nutshell, here is how the law works:

 

1. ‘Loser Pays’ means that who ever ‘loses’ a lawsuit pays the other guy’s attorney’s fees and costs. (right now each side pays their own)

 

2. However, ‘Loser Pays’ is not automatic. Under the proposed law, only the insurance company gets to decide if ‘Loser Pay’ applies.

 

3. Even Worse, ‘Loser’ does not mean what you think it means under this law. Assume a drunk driver runs over you and your child. Assume that your damages are $150,000 in medical bills and lost wages but the insurance company only offers $100,000. You decide to go to trial. Unfortunately, the insurance defense attorney is really good and he convinces the jury the accident was partially your fault (for not ‘watching out’ for the drunk as much as you should have) and he also convinces the jury not to give you all of your lost wages because ‘you should have gone back to work sooner’ instead of taking care of your injured child at home. Still, even with all that, you win and the jury awards you $79,000.00. YOU JUST LOST UNDER THIS NEW LAW!

 

4. Because you only won 79% of the insurance company’s settlement offer, HB274 says you LOST, and YOU HAVE TO PAY THE INSURANCE COMPANIES ATTORNEY’S FEES, TRAVEL EXPENSES, EXPERT WITNESS FEES, AND COURT COSTS.

 

5. Since the insurance company will only hire the best, high priced lawyers, that bill could easily be six figures. Now you owe the drunk driver $21,000

 

Finally

 

6. Under this law, if the plaintiff wins big (i.e. more than what the insurance company offered to settle for) the insurance company still gets a free pass because the law also says that when awarding the attorneys fees to the winner, the court can not consider a contingency fee contract as evidence of attorney’s fees. Only big business and insurance companies can afford to hire an attorney by the hour. The only way an individual or small business can afford to hire an attorney is through a contingency fee contract.

 

Therefore, the effect of this new law is simple:

 

A. If the injured person (or small business) loses, he/it will have to pay the insurance company’s attorneys fees, expert witnesses, court costs etc.

 

B. If the injured person (or small business) wins, but does not win more than 80% of the settlement offer, he/it will still have to pay the insurance company’s attorney’s fees, etc. (which could be more than he was awarded by the jury on his claim). I.e. the victim wins but still loses,

 

C. If the injured person (or small business) wins more than 80% of the insurance company’s settlement offer he is the ‘prevailing party.’ However, because HB274 will not let a ‘contingency fee’ contract be considered as evidence of attorneys fees, the insurance company never has to pay the victims attorneys fees even when the defense loses.

 

This is a call to action. We can not allow special interests to pull off this kind of power grab that profits off the backs of regular folks. Please take five minutes to call your state senator now! Let him or her know you are opposed to this law because it strips rights away from individuals, families, and small businesses, and gives all the power and advantages to big business and insurance companies. They have enough power.

[Clubfoothead]

It's cost the company a lot of money and damaged us in ways that can't yet be calculated.

 

Sure it did. That's exactly what the person who sued you all said too.

 

If your lawyer took a year to get a "meritless" case dismissed, you have pinpointed your problem - your lawyer sucks.

[Beaumont]

http://www.legis.state.tx.us/tlodocs/82R/b....pdf#navpanes=0

 

I am concerned that 6.01 is intended to make loser pays only applicable to benefit Defendants and not plaintiffs who have to hire lawyers on a contingency fee. That is true BS.

Edited May 13, 2011 by Beaumont

[wiegie]

I can also prove to you mathematically that 2=1.

I'm game--fire away.

[yo mama]

7. Hodna's lawfirm has assigned one senior partner ($750/hour), one junior partner ($450/hour), two associates ($250/hour each) and a three paralegals ($100/hour each) to defend the case, and has run up $350,000 in legal fees and litigation costs.

See, my problem with this analysis is that the lawyers don't seem to be getting paid enough.

[Furd]

See, my problem with this analysis is that the lawyers don't seem to be getting paid enough.

 

 

This should make you feel better:

 

Madoff: The $43 million legal bill