The problem with "loser pays" is that it segregates access to the legal system along economic lines even more then it is now.
And the problem with award caps is that there probably are cases out there that honestly desrve more then $250K in damages.
That said, I think the tort system is in desperate need of some kind of reform. It's destroying us.
Where to start?
Limits on contingency fees. I think that lawyers working a case on contingency typically take 25% to 40% of awarded damages. So, you only have to win one $1,000,000 case a year to bring home enough bacon to be in the top %1 of income earners in this country. Or maybe 5 $100,000 cases. If you limit contingency fees to maybe 5%, all those lawyers will do alot of the pre-screening for you because weak cases won't be worth that gamble.
More aggresive insurance companies Part of the reason we're in this mess is that insurance companies decided some time ago that it is often cheaper to pay off an illegitimate claim then to fight it. That's a good short term strategy, but the long term effect is that there is now a whole industry built up around filing weak cases hoping for a quick payout. These guys track what companies are likely to fight vs. fold. So the insurance industry needs to make fighting these cases cheaper, and take a longer term view of the situation. This tends to be difficult for publicly held companies to do because it will likely hurt them in the short term.
Modified "loser pays" system? What if we added another possible outcome to the trial? The jury can make an award to the plaintiff, or not. But, at the request of the defense, the jury would have the power to say not just that the plaintiff gets nothing, but that the case was so lacking in merit that the loser pays. Now lawyers would have to put up a bond (out of their own pocket) pre-trial guarenteeing that the case has merit.
The other solutions aren't quick or easy. They involve improving the overall educational system in our country so that we have a jury pool that isn't braindead and can understand complicated arguments and the implications of their decisions. The other is to improve the overall ethical level of our society. Take responsibility for yourself, get away from the entitlement mentality that pervades this issue.
Oh, here's another thing.
How about a cap on the amount of pain & suffering and punitive damages that go to the paintiff? The rest goes to charity or the government.
It may be legitimate to ask for $1M in punitive damages in some cases, but should the plaintiff get all of that?
And the problem with award caps is that there probably are cases out there that honestly desrve more then $250K in damages.
That said, I think the tort system is in desperate need of some kind of reform. It's destroying us.
Where to start?
Limits on contingency fees. I think that lawyers working a case on contingency typically take 25% to 40% of awarded damages. So, you only have to win one $1,000,000 case a year to bring home enough bacon to be in the top %1 of income earners in this country. Or maybe 5 $100,000 cases. If you limit contingency fees to maybe 5%, all those lawyers will do alot of the pre-screening for you because weak cases won't be worth that gamble.
More aggresive insurance companies Part of the reason we're in this mess is that insurance companies decided some time ago that it is often cheaper to pay off an illegitimate claim then to fight it. That's a good short term strategy, but the long term effect is that there is now a whole industry built up around filing weak cases hoping for a quick payout. These guys track what companies are likely to fight vs. fold. So the insurance industry needs to make fighting these cases cheaper, and take a longer term view of the situation. This tends to be difficult for publicly held companies to do because it will likely hurt them in the short term.
Modified "loser pays" system? What if we added another possible outcome to the trial? The jury can make an award to the plaintiff, or not. But, at the request of the defense, the jury would have the power to say not just that the plaintiff gets nothing, but that the case was so lacking in merit that the loser pays. Now lawyers would have to put up a bond (out of their own pocket) pre-trial guarenteeing that the case has merit.
The other solutions aren't quick or easy. They involve improving the overall educational system in our country so that we have a jury pool that isn't braindead and can understand complicated arguments and the implications of their decisions. The other is to improve the overall ethical level of our society. Take responsibility for yourself, get away from the entitlement mentality that pervades this issue.
Oh, here's another thing.
How about a cap on the amount of pain & suffering and punitive damages that go to the paintiff? The rest goes to charity or the government.
It may be legitimate to ask for $1M in punitive damages in some cases, but should the plaintiff get all of that?
dullard
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- May 21, 2001
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Lets put a spin on the logic. This is a true story. My inlaws own a small business (selling music CDs). Due to dropping sales they barely make enough to survive, and will close shortly. They don't have much money. They have a basement in their store - blocked by two glass doors. On the first door there is a sign that reads "do not enter, employees only" prominantly displayed. Open that door and you are faced by another door that says "steep stairway, watch your step" promently displayed. An elderly woman entered the store (who I now know sues for falls quite frequently). She snuck behind the store counter, opened both doors, walked halfway down the stairs and then fell. She hired a lawyer which ended up costing her $20,000 and sued my inlaws for $5000 claiming that there was brightly colored carpet which distracted her, causing her to miss the signs, and now she has high blood pressure - but she had no injuries. My inlaws have valid points (1) there is no bright carpet in the store, (2) there were many signs and no reason she should have been there, (3) a small fall doesn't give you high blood pressure. Well if it was a loser pays case, they'd have to settle immediately for $5000 since they cannot risk paying that $20,000 lawyer bill. Suddenly the poor (in this case the business) couldn't defend themselves and would be forced to settle.
By the way, my inlaws partially lost - and paid 2/3rd of the claimed damages. If they had to settle they would have had to pay more - which is what the loser pays would have caused.
By the way, my inlaws partially lost - and paid 2/3rd of the claimed damages. If they had to settle they would have had to pay more - which is what the loser pays would have caused.
43st
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That's a bogus law and it's understandable why that would upset the AMA. All I want is for the AMA to root out the lowest 5-10% of horrible doctors. If the AMA did that I'd totally support caps on lawsuits.
I wish Bush would've addressed bad doctors as well as the sue happy patients. It takes two to tango after all.
I don't agree with this. This puts big business in an even stronger position since they would be able to absorb this type of financial cost so much easier than an individual.
Zebo
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I agree 100% with what amused is saying. It's fair for all sides, will reduce frivilus law suits, and still protects the public with it's potentially high punitive damages in cases of outright falgrant disregaurd for the public and consumers.
Also 250K is way out of line.. A hospital and doctor in florida had to amputate both legs of a man because they cut the wrong one off first. Is your healthy leg only worth 250K to you? There are thousands of cases like this since humans arnt perfect. Some are in a hurry when they should'nt be, some should'nt be operating under stress, some may be under the influence, and some just have thier head up thier ass either way mistakes are made and the victim should be "fairly" compensated for a mistake or incommpitence. No one in thier right mind thinks a life of someoone you love is worth only 250K....2-10 million is probably a better figure since that what jurors feel in these cases.
Also 250K is way out of line.. A hospital and doctor in florida had to amputate both legs of a man because they cut the wrong one off first. Is your healthy leg only worth 250K to you? There are thousands of cases like this since humans arnt perfect. Some are in a hurry when they should'nt be, some should'nt be operating under stress, some may be under the influence, and some just have thier head up thier ass either way mistakes are made and the victim should be "fairly" compensated for a mistake or incommpitence. No one in thier right mind thinks a life of someoone you love is worth only 250K....2-10 million is probably a better figure since that what jurors feel in these cases.
Zebo
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?
Corps can still do that now and all cases would be taken on contigentcy still by individuals. Just not as many, and thats the goal here. If the poponderance of the eveidence leans your way the lawyer would have no porblem taking the case. Now lawyers sue regaurdless of evidence cuz they know it's cheaper for the defense to settle than fight.. -slip in a super market today act like your backs hurt is an automatic 15K...This is bleeding us and a redistrubution of wealth to the lowest of the low scam artists and thieves (and lawyers
).Ah yes, the infamous and widely publicized case of Willie King in Tampa. The hospital and doctor in Florida had to amputate both legs (below the knee) because King's feet were gangrenous from diabetic complications. As I mentioned above, this was not a case of "doctor amputates good leg instead of bad", but "doctor amputates bad leg instead of worse leg". Both feet exhibited signs of gangrenous infection, both legs would ultimately require amputation. Only the patient went in on THAT particular day to have a particular leg removed, and they amputated the other leg. The lay media kindly neglected to include that information.
This is known as "wrong site" surgery, pretty self-explanatory, a doctor operates on the 'wrong' part of the body. During the 10 year period from 1985 to 1995, the Physicians Insurers Association of America (PIAA) counted 225 claims for wrong-site surgery by its 110,000 doctors. During the same period of time, there were roughly 200 million surgical procedures performed in the United States. I believe the odds of being attacked by a shark are slightly better.
Willie King was awarded $1.2 million dollars, not because he lost a 'good' leg, but for a mistake which amounted to nothing more than one foot being amputated several days before it would ultimately need to be. An inexcusable error, for sure, but radically different from "surgeon amputates good leg and leaves bad leg", and hardly worth $1.2 million.
I think most of the people here are way confused by this "cap" on punitive damages. This is no way limits the amount of compensatory damages the client can receive. In the case of the "amputated leg" or let's say wrongful death, you still will receive millions of dollars. They are only limiting the punitive damages, which are the cause of these outrageous judgements. Let's take for example the 28 billion smoking judgement. The punitive damage award was 33,000 times the amount awarded to her to actually compensate for her injuries, medical bills, etc. Does that make any sense at all? What if these awards keep spiraling out of control. Think about this. What happens if the insurance premiums to be a doctor are so expensive that it costs $50000 just to visit one for a cold or something. Who is going to foot the bill. All of us....:|
Dullard a loser pays system means the person bringing the suite and loses pays
So that person lying pays BOTH Legal fees.
If your inlaws loose the case they are paying anyways.
THATS the difference
It promotes responsibility so that if you are going to sue somebody you better have a resonable chance of winning.
So that person lying pays BOTH Legal fees.
If your inlaws loose the case they are paying anyways.
THATS the difference
It promotes responsibility so that if you are going to sue somebody you better have a resonable chance of winning.
Zebo
Elite Member
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So hows the cap gonna stop the unnoticed but much more costly since they happen hundreds of times daily- guy slips on a banana peel types of cases? These amount fall way below the cap and are still to costly to fight for the insurance so they are simply extorted. Loser pays addresses these <250K cases caps on punitive damages does'nt.
I am not saying that the "cap" is the only thing that should be done to help prevent skyrocketing litigation, but it is a good start. The loser pays is another good idea imho......
How about starting with, "Kill all the lawyers."
I'm only half-joking.
As pointed out previously, "Loser Pays" discriminates along economic lines. On the other hand, I believe that the poor are more "sue-happy" than the rich.
BTW, I believe it is customary for plaintiffs and defendants in most lawsuits to ask for "court costs and attorneys' fees." It is up to the judge to decide whether or not to award these. Judges almost never do.
Also, I believe that ATLA (American Trial Lawyer Association) is one of the largest contributors (if not THE largest) to Congressional campaign funds. Good luck beating those B*stards.
I'm only half-joking.
As pointed out previously, "Loser Pays" discriminates along economic lines. On the other hand, I believe that the poor are more "sue-happy" than the rich.
BTW, I believe it is customary for plaintiffs and defendants in most lawsuits to ask for "court costs and attorneys' fees." It is up to the judge to decide whether or not to award these. Judges almost never do.
Also, I believe that ATLA (American Trial Lawyer Association) is one of the largest contributors (if not THE largest) to Congressional campaign funds. Good luck beating those B*stards.
Most lawyers will pick up a case for % of the winnings therefore IF the poor have a case they will have no trouble finding a lawer who is willing to do the work.
Read the Rainmaker, thats why there are so many BS suits the poor can't afford it now, the lawyer is willing to sue for a % and all he is out is his time if they don't win.
Kinda like winning a lottery.
Make it so they have to pay and you won't see lawsuits for bad dates or prisoners suing the state cause they didn't get the dessert they wanted at mean time and its a violation of their "rights"
There isn't one other industrialized country in the world that doesn't have a loser pays system of justice.
Read the Rainmaker, thats why there are so many BS suits the poor can't afford it now, the lawyer is willing to sue for a % and all he is out is his time if they don't win.
Kinda like winning a lottery.
Make it so they have to pay and you won't see lawsuits for bad dates or prisoners suing the state cause they didn't get the dessert they wanted at mean time and its a violation of their "rights"
There isn't one other industrialized country in the world that doesn't have a loser pays system of justice.
As others have said, the problem weith a full-blown loser pays system is that the defendent will run up the defense cost as a deterrent.
Even if you had a solid case for a $5k lawsuit, would you risk it if you knew the defendent would run up huge legal bills that would bankrupt you if you lost? They'd only have to make an example of a few cases to discourage all future suits. And they own their own lawyers, so whose to say if the $100K they claim in legal fees is really legit?
I support loser pays, but with limits, and not as the default.
Even if you had a solid case for a $5k lawsuit, would you risk it if you knew the defendent would run up huge legal bills that would bankrupt you if you lost? They'd only have to make an example of a few cases to discourage all future suits. And they own their own lawyers, so whose to say if the $100K they claim in legal fees is really legit?
I support loser pays, but with limits, and not as the default.
Yeah a few poor people might be disadvantaged but the Pros outweigh the Cons by manyfold.
The only people who don't want a loser pays system is the lawyers and thats a fact.
Me flashes to Simpsons Lionel Hutz lawyer "could you imagine a world without lawyers?"
Him envisions peace
"The unleashing of litigation in its full fury has done cruel, grave harm and little lasting good. It clogs and jams the gears of commerce, sowing friction and distrust between the productive enterprises on which material progress depends and all who buy their products or work at their plants and offices. It seizes on former love and intimacy as raw materials to be transmuted into hatred and estrangement. It sets parent against parent, doctor against patient. It exploits the bereavement that some day awaits the survivors of us all and turns it to an unending source of poisonous recrimination. It torments the provably innocent and rewards the palpably irresponsible. It devours hard-won savings and worsens every animosity of a diverse society. It is the special American burden, the one feature hardly anyone admires of a society that is otherwise envied the world around. "
The cost of a sue crazy society.
The only people who don't want a loser pays system is the lawyers and thats a fact.
Me flashes to Simpsons Lionel Hutz lawyer "could you imagine a world without lawyers?"
Him envisions peace
"The unleashing of litigation in its full fury has done cruel, grave harm and little lasting good. It clogs and jams the gears of commerce, sowing friction and distrust between the productive enterprises on which material progress depends and all who buy their products or work at their plants and offices. It seizes on former love and intimacy as raw materials to be transmuted into hatred and estrangement. It sets parent against parent, doctor against patient. It exploits the bereavement that some day awaits the survivors of us all and turns it to an unending source of poisonous recrimination. It torments the provably innocent and rewards the palpably irresponsible. It devours hard-won savings and worsens every animosity of a diverse society. It is the special American burden, the one feature hardly anyone admires of a society that is otherwise envied the world around. "
The cost of a sue crazy society.
Originally posted by: desy
Yeah a few poor people might be disadvantaged but the Pros outweigh the Cons by manyfold.
The only people who don't want a loser pays system is the lawyers and thats a fact.
Me flashes to Simpsons Lionel Hutz lawyer "could you imagine a world without lawyers?"
Him envisions peace
By poor people, I assume you mean anybody making less then 6 figures?
Cuz most of the people I know make less then that, and most of them would be basically betting the house for any non-trivial lawsuit in a loser-pays system.
A poor person has nothing to bet. the poor seem to be doing just fine in EVERY other industiralized country.
Its called personal responsibility if the poor person has a case AGAIN they will find a lawyer to pick up the banner if they don't
IT DOESN"T PROBABLY DESERVE TO GOT TO COURT, and if the case is too small you can always go to court and represent yourself.
You don't always need a layer.
Its costs you more than you think
"The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure (requires scrolling down), provides a modest degree of fee-shifting, and operates in tandem with Rule 68 (requires scrolling down), which provides for fee awards hinged on offers of settlement.
In the mid-1990s, both Oregon and Oklahoma enacted statutes that applied loser-pays principles to significant categories of litigation in their state courts. These laws are discussed in the Olson/Bernstein Maryland Law Review article cited below.
Although no national organization has arisen to promote it, loser-pays continues to be a popular reform idea in many states. In South Carolina, 57 House colleagues joined state representative Gresham Barrett in sponsoring a loser-pays measure (South Carolina Policy Council). Loser-pays measures have been introduced in Arizona (H.B. 2230), and, with respect to specialized statutory areas, such states as Colorado (farm nuisance suits, S.B. 43, Rep. Ken Chlouber). "
Its called personal responsibility if the poor person has a case AGAIN they will find a lawyer to pick up the banner if they don't
IT DOESN"T PROBABLY DESERVE TO GOT TO COURT, and if the case is too small you can always go to court and represent yourself.
You don't always need a layer.
Its costs you more than you think
"The state of Alaska has followed a loser-pays system for decades. Rule 82 of the Alaska Rules of Civil Procedure (requires scrolling down), provides a modest degree of fee-shifting, and operates in tandem with Rule 68 (requires scrolling down), which provides for fee awards hinged on offers of settlement.
In the mid-1990s, both Oregon and Oklahoma enacted statutes that applied loser-pays principles to significant categories of litigation in their state courts. These laws are discussed in the Olson/Bernstein Maryland Law Review article cited below.
Although no national organization has arisen to promote it, loser-pays continues to be a popular reform idea in many states. In South Carolina, 57 House colleagues joined state representative Gresham Barrett in sponsoring a loser-pays measure (South Carolina Policy Council). Loser-pays measures have been introduced in Arizona (H.B. 2230), and, with respect to specialized statutory areas, such states as Colorado (farm nuisance suits, S.B. 43, Rep. Ken Chlouber). "
Sure, you'll find a lawyer to take the case, unless the plaintiff's lawyer were the one that had to pay in a loser-pay system. Most of the stuff we're talking about here doesn't have a snowballs chance in hell of happenng, But I guarentee that a loser's-lawyer-pays system will never happen.
The other bit I should have put on my list above is that we have to stop electing lawyers as our leaders. Why do we feel that, overwhelmingly, the best choices for elected officials are lawyers? My guess is that the legislative process has become so distasteful, that only lawyers have the stomach for it. They wallow in that crap. Guess we're just to afraid that the wrong lizard might win.
I'm all for tort reform. We're all indirect victims of this crap. I've been a direct victim of it twice. Lawyers are about the lowest scum on the planet, but access to the courts, regardless of economic means is critical.
Does anybody have some information on how loser-pay systems are implemented in other countries? It seems there has to be some checks on the system.
Lets make it a bit more of a concrete example...
The doc left a sponge under your liver when he was taking your appendix out. No doubt about it, somebody screwed up. You're gonna sue for the lost wages and other direct & indirect costs incurred due to the second surgery and maybe some reasonable punitive damages. say half the actual damages. Maybe 20K total.
Now you get a nice letter from the doc's insurance company before you go to trial. Just a little note telling you that they expect to spend on the order of $200,000 defending this case. Juries are fickle, all kinds of things can happen in the court room. Maybe the doc can show that it was really a nurse that slipped that sponge in there. Maybe somebody on the jury doesn't like the size of the proposed award. Maybe your lawyer screws up. Who knows? Can you afford to take that gamble? Put yourself honestly in that position? Do you take it? If you lose, your family is out on the street.
Now why would they be willing to spend $200K defending against a $20K suit? To send a message, and because they can. The lawyers are on their staff. Their going to get paid either way, might as well use em. And it's the companies internal records that say they actually spent $200K on the defense. You'd have to sue them again to prove they didn't.
Missed my edit eh
Its already here and more are looking at it.
Why?
Cause its a better system overall.
I live in the land of No fault belevie it or not, which they just opened up to tort again but have made the issue so confusing your not sure which type of insurance to get
Plow though that site it goes though all the various flavors of Loser Pays.
Its already here and more are looking at it.
Why?
Cause its a better system overall.
I live in the land of No fault belevie it or not, which they just opened up to tort again but have made the issue so confusing your not sure which type of insurance to get
Plow though that site it goes though all the various flavors of Loser Pays.
Excellent link, thanks.
I found this very good link there describing the European system. I would definitely support that kind of system. As I said earlier, I can't support a full blown loser-pays system for the reasons given in my previous post. But with the right checks and balances, it could certainly help.
dullard
Elite Member
- May 21, 2001
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You just mentioned a loser pays if he/she is the plantiff. That is a modified loser pays system. I'm in support of loser pays. The real "loser" pays means whoever loses pays for everything - regardless of the side you are on. That I don't agree with. I truely think the jury if requested should decide if it was frivoluous. Then whoever caused the frivilous lawsuit should pay all.
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