Why do frivolous lawsuits/ malpractice suits exist?

[libertybrewcity]

I understand why lawsuits exists, and they are often necessary. I don't understand why frivolous lawsuits exist and how people continuously profit from them? I am specifically talking about medical malpractice suits. Are the judges at fault for rewarding patients 50 million dollars in some cases and simultaneously ruining the lives of doctors across the nation?

Do other countries have problems with these lawsuits? What part of the system, whether it is the government or marketplace, is at fault?

[pcosmar]

Why do frivolous lawsuits/ malpractice suits exist?

Greed, dishonesty and a corrupt legal system.

[lynnf]

I understand why lawsuits exists, and they are often necessary. I don't understand why frivolous lawsuits exist and how people continuously profit from them? I am specifically talking about medical malpractice suits. Are the judges at fault for rewarding patients 50 million dollars in some cases and simultaneously ruining the lives of doctors across the nation?

Do other countries have problems with these lawsuits? What part of the system, whether it is the government or marketplace, is at fault?

from my understanding, "frivolous" lawsuits started with prisoners when they gained access to prison law libraries. they would flood a court with screwy court motions designed just to bog the system down due to the sheer volume. unfortunately, the term has suffered from "mission creep" to now cover any lawsuit that the judge or other people don't like.
just a fact of life.

[mrsat_98]

from my understanding, "frivolous" lawsuits started with prisoners when they gained access to prison law libraries. they would flood a court with screwy court motions designed just to bog the system down due to the sheer volume. unfortunately, the term has suffered from "mission creep" to now cover any lawsuit that the judge or other people don't like.
just a fact of life.

Your absolutely correct, these prisoners could not have started all that shite" if they didn't have rights. We would all be better off if we just give up our rights and have the government make laws to protect us from these frivolous lawsuits.

If the gov would just declare the whole country a military reservation, within Article 1 Section 8 clause 17-18 Article 4 Section 3 Clause 2, under national emergency 12 USC 95 (a) and (b) then every interaction we the people have with each other could be deemed or construed as an enemy transaction and thus illegal unless you buy a license and pay a tax. You know kinda like sales tax, income tax, property tax, carbon tax, etc just like today. Why not just make the people the enemy in an occupied territory and be open about it. Don't hide it an lie about it like they do today. Then the people would understand and the gov could protect us from these frivilous lawsuits.

[mrsat_98]

duplicate post

[Danke]

Your absolutely correct, these prisoners could not have started all that shite" if they didn't have rights. We would all be better off if we just give up our rights and have the government make laws to protect us from these frivolous lawsuits.

If the gov would just declare the whole country a military reservation, within Article 1 Section 8 clause 17-18 Article 4 Section 3 Clause 2, under national emergency 12 USC 95 (a) and (b) then every interaction we the people have with each other could be deemed or construed as an enemy transaction and thus illegal unless you buy a license and pay a tax. You know kinda like sales tax, income tax, property tax, carbon tax, etc just like today. Why not just make the people the enemy in an occupied territory and be open about it. Don't hide it an lie about it like they do today. Then the people would understand and the gov could protect us from these frivilous lawsuits.

+rep. Tired of my tax dollar being wasted on these scum.

[jm1776]

Unintended consequences of a medical system based on a state sanctioned/enforced monopoly on health care.

The monopoly consists of medical school graduates who are taught two primary "healing" tools, to the exclusion of any alternatives; surgery and chemical compounds.

The result is a health care system where the focus is [B]treating symptoms with expensive and questionable chemical compounds and risky surgeries.

I'm not saying all malpractice suits are justified but I am saying our system of care and treatments are often injurious rather than healing.

[pcosmar]

Actually, the Medical suits have increased due to insurance companies. They made it too easy for lawyers to profit from claims. often paying a "settlement" rather than fighting a false claim. This gave rise to "Ambulance Chasers" that saw every visit as an opportunity to profit.

prior to "malpractice insurance" they had to prove that a Doctor was truly at fault. The Insurance has also allowed poor or inept Doctors to remain in practice long after they should have been sued out of business.

Service declines, costs rise and the Lawyers and Insurance Companies benefit.

[TonySutton]

+rep

you hit the nail right on the head!

[Acala]

The answer is profit.

Profit is a boon to mankind when it arises from voluntary transactions because it directs resources towards transactions in which both sides benefit. It drives the economy to produce goods and services that people want.

Unfortunately the legal system, specifically the tort system including med mal, was perverted to award profit in situations that absolutely are not voluntary. As such, it has been the driving force behind the corruption of the tort system.

More specifically, the civil courts were originally intended to correct wrongs by rexstoring losses people suffered as a result of someone else's wrongful conduct. Someone's bull gets loose and gores your horse to death - the court orders the bull owner to pay the market value of your horse. Someone runs into you with their bicycle and breaks your leg, the court makes them pay to restore your leg as much as possible to the way it was. Someone harms you in a way that causes you to lose your job, they have to pay you what you lost. In this way the damaged person is put back to the condition they were in before the accident. They emerge unscathed but they don't profit either.

Lawyers, with the assistance of the courts and legislatures, slowly insinuated into the system new common and statutory law that allowed the injured person to come out of the accident AHEAD of where they were. Awards of damages for speculative injury that cannot be treated or compensated, such as "pain and suffering" and other types of emotional harm, created the unique situation in which the injured party could come out financially ahead after an accident. Of course the lawyers share in the profit because of the contingency fee system. So now the profit motive drives lawsuits.

The fender bender that once would have been settled easily for the cost of the car repair now becomes a lawsuit worth thousands because of the profit available to the plaintiff and his lawyer.

Punitive damages are also a novel source of profit for lawyers and their clients. I once wrote a book on tort reform. Couldn't get anyone to even LOOK at it. So it remains unpublished. Here is the chapter on punitive damages:

As explained in a previous chapter, the judicial branch of government in the US has always been divided into two halves: the criminal system and the civil system. The two systems have vastly different laws, rules and functions.

The purpose of the criminal system is to deter people from acting in a way that the public, acting through their representatives in the legislature, has determined is contrary to the interests of society at large. The criminal system does this by administering punishment to individuals who act in a manner that has been prohibited. This punishment is designed to not only deter the convict from engaging in the prohibited behavior again, but to alert everyone else to the adverse consequence of acting contrary to the law.

Because of the danger inherent in the power to punish, the criminal system works within a rigid framework designed to protect people from punishment imposed unfairly, arbitrarily, or by mistake. Some of the protections built into the criminal system are written into the U.S. Constitution and the Constitutions of the various States. Other protections evolved in the courts over hundreds of years in Great Britain and were adopted by the young United States along with most of the rest of English Common Law. Some protections have been imposed by the State legislatures and the Courts themselves. We will discuss some of these protections in detail shortly.

The protections provided for the benefit of people drawn into the criminal system as
defendants do not, for the most part, protect people drawn into the civil system as
defendants. This is appropriate since the civil system merely restores proper order among people who have a dispute, it doesn't impose punishment - at least it didn't until the civil courts began a full-scale invasion into the territory of the criminal system.
The modern American courts, without vote of the people or approval of the legislature,
recently took it upon themselves to begin administering punishment through the civil
system. The punishment the civil courts started to administer is in the form of monetary
fines levied against civil defendants. These often massive fines are called punitive
damages or exemplary damages and are paid by the defendant to the plaintiff and his
lawyer. To understand just how egregious it is for the civil system to usurp the
punishment functions of the criminal system, we will need to compare and contrast the
two systems and the way in which they dole out punishment.

Actions seeking criminal penalties are initiated in the criminal court by attorneys working
for the State. These attorneys who bring criminal lawsuits on behalf of the People of the State are called prosecutors. Prosecutors have significant discretion in deciding which cases have merit and which should not be pursued. When the police bring a case to the prosecutor, the prosecutor will examine the evidence and determine whether or not there is sufficient evidence to prove that the person the police arrested has committed a crime. If the prosecutor determines that there is insufficient evidence, he decides not to pursue it and no charges are brought against the person. The prosecutor is a government employee working for a set salary. He gets no additional compensation for a successful prosecution. So the typical prosecutor, who acts as the gatekeeper for suits entering the criminal system, is free to evaluate each case on its merits without any personal gain involved to bias his judgment. Although prosecutors are sometimes under political pressure or have political ambitions that drive them, they are generally motivated by the desire to punish real lawbreakers and ignore everyone else. At the very least, the prosecutor has no direct pecuiary interest in the court administering punishment to a criminal defendant.

On the other hand, the plaintiff attorney that initiates a civil action seeking punitive damages in civil court is motivated by avarice. It is in his personal pecuniary interest to have the court administer punishment to anyone that can pay the fine, innocent or not, since a substantial part of the punitive damage award (typically one third) goes to the lawyer. So the procedure to administer punishment in the criminal system is initiated by a prosecutor who has no pecuniary interest in punishing the innocent, while the procedure in the civil system is initiated by a plaintiff attorney who stands to make money regardless of the innocence of the defendant.

One of the first requirements imposed on a prosecuting attorney wishing to have a
criminal court impose punishment on a defendant is the requirement of charging the
defendant with a specific crime. To charge the defendant, the prosecutor must find a
written criminal law that prohibits very specifically the bad acts the defendant allegedly
committed. If there is no statute that clearly prohibited the defendant’s conduct, the
prosecution never even gets started. And there is good reason for this. The purpose of
the criminal system is to deter conduct that the people, through their elected
representatives, have determined is bad for society. The people, through their
representatives in the legislature, decide what conduct is to be prohibited and then the
prohibited conduct is clearly described and published in statutes so the people can know in advance what conduct to avoid.

As a practical matter, a system that has as its goal the deterrence of bad behavior MUST make clear to the people what exactly is the behavior to be deterred and it must do so before they act. People can’t be deterred from acting in a certain way unless they can know specifically what it is they are not supposed to do.
Indeed, it is a fundamental concept of the rule of law that the people must know what the law is, else they cannot be expected to follow it.

Conduct that will lead to punishment in the criminal system is defined very clearly. For
example, in the State where I currently reside, the law prohibiting First Degree Murder
explains one form of the prohibited conduct as follows:
A person commits first degree murder if:

1. Intending or knowing that the person's conduct will cause death, the person causes the death of another with premeditation.

The statute explains that the word "person" means a human being and the word
"premeditation" means: "that the defendant acts with either the intention or the
knowledge that he will kill another human being, when such intention or knowledge
precedes the killing by any length of time to permit reflection. Proof of actual reflection
is not required, but an act is not done with premeditation if it is the instant effect of a
sudden quarrel or heat of passion."

The point of reproducing this statute here is to demonstrate that in the criminal system, the prohibited act is clearly written out for all to see in advance and allows people to adjust their conduct accordingly. In fact, if the written law is not clear enough regarding what conduct it prohibits, it will be declared unconstitutional and the defendant will be allowed to go free.

Two main reasons are given by the criminal courts for demanding clarity in the laws by
which people are to be punished:
1. The law must describe the prohibited conduct clearly enough that the ordinary person can intelligently choose in advance what he can and cannot lawfully do; and

2. The law must not describe the prohibited conduct in terms so imprecise as to
encourage arbitrary enforcement by allowing prosecuting authorities excessive flexibility
in determining the scope of the prohibition.

In other words, the law can’t be so vague as to allow the government to, for example, enforce it against enemies but not against friends.

So, in the criminal system, if the prosecuting attorney cannot find a law that clearly
described and prohibited the defendant's alleged conduct in a way that would have
allowed the defendant to know ahead of time that his conduct would be punished, the
defendant CANNOT be punished. Not so when the civil system administers punishment.

Punitive damages in civil cases typically are not authorized by statute but rather are allowed by the civil courts on a case-by-case basis. There is nowhere a person can go to read a specific description of what conduct will be punished with punitive damages in the civil courts. No act of the elected representatives of the people has established what conduct will be punished by the civil court. Rather, the courts themselves have issued vague general statements that are to be applied by a jury, in hindsight, to the specific conduct of the defendant in each case as it arises.

For example, some common court-created standards of conduct meriting punishment are "outrageous" or "wanton". So a person wishing to avoid being punished in the civil court has no more to go on than his best guess as to whether a jury, in hindsight, might find his conduct outrageous or wanton. Keep in mind that serving hot coffee was considered by a jury to be outrageous conduct worthy of a multi-million dollar fine. Care to guess what else might be? No? Well, too bad, because guess you must. The civil courts do not have to tell you in advance what conduct will be punished. They just know it when they see it.

So the criminal law imposes punishment for conduct that must be prohibited by a vote of the legislature and clearly defined in a written statute that the accused can read and understand before he acts. The civil court, on the other hand, imposes punishment for conduct that has not been specifically prohibited anywhere but which is determined, after the fact, by a single judge or handful of randomly selected jurors, to be bad in some vague way.

The U.S. Constitution specifically prohibits ex post facto laws – laws enacted to prohibit conduct AFTER the conduct has occurred. For example, if I were to throw a tomato at my Congressman today and he and his friends in the Congress enacted a law tomorrow making tomato throwing illegal, I could not be prosecuted under the new law because my conduct was not prohibited when I threw the tomato. It would be an unconstitutional ex post facto law. However, punitive damages imposed by the civil courts are ALWAYS ex post facto. First comes the conduct of the defendant, only later is that conduct determined by the court to be worthy of punishment.

The next obstacle the prosecuting attorney in the criminal case confronts is the Fifth
Amendment to the U.S. Constitution - the right of the defendant to refuse to testify
against himself. The defendant in a criminal case cannot be compelled to take the stand and testify in a case where he may be punished as a result of his testimony. The civil court provides no such protection for defendants exposed to the possibility of punitive damages. The civil court can and will force a defendant to testify against himself.

With the evidence he has available to him, the prosecutor must prove his case to the highest standard known to the law - beyond a reasonable doubt – before the criminal court can impose punishment. This means that before the criminal defendant can be
punished, the jury must believe to a near certainty that the defendant did as he is alleged to have done. On the other hand, the civil courts hand out punishment much more readily. The standard level of proof required in civil courts is described as "more
probable than not" or “by a preponderance of the evidence”. In other words, the plaintiff attorney in the civil case need only prove that the defendant more likely than not committed the alleged “outrageous” act for the civil court to administer punishment.

In some jurisdictions, punitive damages require a slightly elevated standard of proof –
“clear and convincing evidence” rather than preponderance of the evidence. However, the difference is negligible in practice.

And the attorney in the criminal case must convince a jury, not just a judge. The right to a jury trial is not guaranteed to a civil defendant facing punishment.

Furthermore, unlike the criminal defendant, the civil defendant facing punishment is not presumed innocent, he has the benefit of no such presumption.

A criminal defendant is entitled to have an attorney provided for free by the government. The civil defendant facing punishment has no such right. He must provide his own defense, and if the lawsuit brought against him is frivolous and he wins the case, he can’t recover the money he spent on his defense from the plaintiff.

Nor does the civil defendant have the same right to a speedy trial as does the criminal defendant, and civil cases can last many years. The longer they last, the more they cost.

Finally, assuming that the criminal prosecutor successfully proves his case, the
punishment he may ask for is limited by law. The criminal statutes that must clearly
define the conduct to be punished also classify each crime and specify the punishment
that can be administered upon a guilty verdict.

For example, the statute may specify that for crimes classified as Class 5 felonies, the minimum sentence will be 9 months and the maximum will be 2 years in prison. Grounds for departing from the rules, for example in the case of mitigating circumstances, are also spelled out in detail. This makes for consistent treatment among those who break the law and prevents the court from meting out extra punishment to people just because they are unpopular or don’t make an appealing show in court.

On the other hand, punishment by the civil court is unlimited. The plaintiff attorney, motivated by personal profit, will ask for the moon. And if the judge or jury
agree, he gets it. So not only is it impossible to know in advance what conduct might be punished by a civil court, it is impossible to know whether the fine to be imposed will be $10 or $10 million.

So the many limitations on the criminal court’s power to punish, limitations mandated to
prevent unfair, arbitrary, or excessive punishment, limitations developed over hundreds
of years of social progress, have been wholly sidestepped by the civil courts as they
pursue their new, self-appointed role as wielders of the power to punish.

The lawyers will argue, as have the courts, that punitive damages are appropriate as a
deterrent to outrageous conduct. Indeed, the courts sometimes call punitive damages by the name “exemplary damages” because the punishment is supposed to serve as an
example to others not to do the same thing. Unfortunately for the proponents of this
apology for punitive damages, it doesn’t hold water.

First of all, it is not the role of the civil courts to engage in deterrence. We already have other courts for that. They are called criminal courts. The criminal system is far from perfect, but the solution to that problem is to reform the criminal system, not create an ad hoc parallel punishment system. The civil courts have no business appointing themselves to a job already assigned by the legislature and most State constitutions to another branch of the judicial system.

Secondly, it is not for the civil courts to determine what conduct should be deterred. That is a job for the elected representatives of the people.

Thirdly, since it is not possible to know in advance what conduct will be punished by the civil courts, deterrence is impossible. For there to be deterrence, there must be the opportunity to know in advance, with specificity, what conduct will be punished. The civil courts offer no such opportunity when they impose punitive damages.
When civil courts impose punitive damages, at the behest of plaintiff lawyers and their
clients, what we have is a small groups of people apprehending a person they want to
punish, deciding for themselves what conduct deserves punishment, putting their
“victim” on trial without the protections of the criminal justice system, and applying
punishment with whatever severity suits their mood. There is a name for groups of
people who do this. They are called vigilantes. And the only difference between the
vigilantes of the wild west and the punitive damage vigilantes of today is that the former were usually concerned with public safety, while our modern, civil court vigilantes are motivated by greed, envy, and prejudice. While it may be argued that vigilantes are needed on the outskirts of the raw frontier where there are no laws and no criminal justice system, there is no rational justification for vigilantes in the midst of an orderly and civilized society where there is a functioning criminal justice system right next door.

The punishment handed down by the civil court has another interesting difference from
the criminal court - the criminal court only punishes human beings, while the civil court
"punishes" fictitious legal entities such as corporations. Or, more correctly, the civil
court gives the appearance of punishing corporations but, as we shall see, appearances
can be deceiving.

Punishment is the infliction of pain, suffering, or other discomfort on a person for the
purpose of deterring them, and others, from repeating some misconduct. The criminal
court inflicts this discomfort on convicts by fining them, forcing them to perform
community service, or imprisoning them. At least theoretically, this can deter the person from repeating the same misconduct because they want to avoid the discomfort. But corporations and other organizations can't feel pain or experience suffering - they are legal fictions. Corporations are conglomerations of papers and laws, they do not have any corporeal existence. You cannot punish a legal concept. And yet the civil courts impose the most punitive damages by far on corporations. There are two reasons for this.

The first reason is that corporations are deep pockets. Punitive damages don't create any graft for lawyers when they are levied against defendants who are judgement proof. The second reason has to do with the psychology of juries.
Because they are not human beings, corporations have no face and therefore do not elicit much sympathy from people. It is easy to “punish” a non-human, intangible concept. They don't cry or plead. Additionally, corporations are often seen as oppressive bullies. So the skillful plaintiff lawyer will portray his injured client as the poor, oppressed common man battling against the faceless, uncaring, filthy-rich corporation. As a consequence, juries often award staggering punitive damage awards against corporations.

But as we have already mentioned, legal concepts can't be punished. So who IS punished by punitive damage awards against corporations? The bottom line is that YOU are punished. But let's backup a step and see how we get there.

Corporations have no physical existence and can't act by themselves. Since they are just legal concepts, corporations must act through their human agents - the officers, directors, employees, and staff that operate the business. It is these agents that make whatever decisions, or commit whatever acts, are supposedly being punished by the civil courts when the civil courts “punish” corporations. But do these employees feel any pain when the corporation is punished? Not likely. Corporations regard punitive damage awards as an unfortunate cost of doing business, like vandalism or thievery. They don't cut salaries, they don't fire officers, they simply pay the damages out of general funds and go home. Then they come to work the next day and raise prices on their products and/or cut dividends on their stock to recover the money.
So who has been punished by the punitive damage award? The shareholders and
consumers. And that means you.

Plaintiff attorneys will argue that it is up to the shareholders to punish the corporate officers and directors for acting in a way that brings on punitive damages. But as a practical matter, this never happens. First of all, most shareholders aren't aware enough of what is happening in the companies they own to know when a punitive damage award has been levied. In fact, most shareholders don’t even know what stock they own since it is owned through pension plans and mutual funds. The large shareholders that do know when punitive damage awards are levied against the corporations they own also know that punitive damage awards are unpredictable and have very little to do with the way a company is operated. So the cost
of punitive damage awards trickles down to you through higher costs for goods and
services, higher insurance rates, lower interest rates on your savings, and lower return on your pension plans and mutual funds. But as a shareholder, you could scarcely begin to identify even which corporations are involved, let alone which officers or directors need to be punished. And in most cases you probably would not agree that punishment is appropriate in any event. If you were a shareholder of McDonalds, who would you have thought should be punished for serving hot coffee to Stella Liebeck? Would you think ANYONE should be punished?

But suppose you could pass a law to make the corporations assign blame and impose the punitive damage award on individuals within the corporation? Even putting aside the
enormous and distasteful practical problems, it simply cannot work. It was the great
Greek philosopher Heraclitus who said "no-one can step twice into the same river"
because it is always changing. The form appears the same, but the real substance of it
just flows through. So it is with corporations.

From the time of the alleged “outrageous” conduct by a corporation to the time a final award of punitive damages is imposed, five or ten years routinely pass. Within that time, the shareholders have changed, the employees have changed, the officers have changed, and the directors have changed. When a man commits a crime and you punish him ten years later, he is still the same man. Not so a corporation.
Punish a corporation today for an act that took place five years ago and you might just as well punish someone pulled into court randomly off the street.
The concept of punishment simply does not apply in either a philosophical or practical
sense to corporations. But this doesn’t bother anyone in the tort system because the
REAL purpose of punitive damages is not to serve any public good by deterring bad
conduct. That is simply the pretext that obviously does not stand up to scrutiny. The real reason for punitive damages is, of course, graft. Punitive damages are the Powerball jackpot in the tort lottery. Punitive damages are a windfall for the plaintiff and his attorney, in spite of the public service masquerade. The truth is that they serve no punitive purpose. They serve no deterrent purpose. And by attempting to impose punishment outside the limitations and protections of the criminal system, the civil courts have unleashed a dangerous monster ruled only by avarice and caprice.


Punitive damages should be abolished. If the public wants to deter some specific conduct it can petition the legislature to make the conduct illegal. Then we can punish human beings who break the law through the system designed for that purpose - the criminal system, with its highly evolved protections against whim and caprice, where justice is the motive, not graft.

[libertybrewcity]

wow^thank you for your response. I only had time to read half of it now, but I'm definitely going to finish it later. thanks

[PeacePlan]

You would have far less lawsuits if we had a system of loser pays. Right now I can just file a suit on any stupid thing and if I lose I would not be required to pay costs incurred by the one I sued. Many lawyers would not file the suits they now do on a contingency basis and would want to be paid up front. Many of the people we elect are lawyers and there is a huge lobby against any bills that even suggest a loser pays system that would help solve the problem. Think about it, most people would not sue unless they had a good reason if we had a loser pays system - they would end up paying if they lost.

[Acala]

You would have far less lawsuits if we had a system of loser pays. Right now I can just file a suit on any stupid thing and if I lose I would not be required to pay costs incurred by the one I sued. Many lawyers would not file the suits they now do on a contingency basis and would want to be paid up front. Many of the people we elect are lawyers and there is a huge lobby against any bills that even suggest a loser pays system that would help solve the problem. Think about it, most people would not sue unless they had a good reason if we had a loser pays system - they would end up paying if they lost.

I agree. Not only should the loser pay the defense costs of the other person, but they should also pay the real cost of using the court system. Taxpayers should not have to subsidize it.

One problem with "loser pays", is that often the losers are judgement proof. That is to say that they have nothing with which to pay the other person's defense costs. The solution would be to require a bond up front from both parties that must be increased at intervals as the case goes on and costs increase. When the case is resolved, the bond of the loser is used to pay defense costs of the winner and court costs.

[Zippyjuan]

I am a bit confused at the Libertarian responce on this issue. Perhaps somebody can help me out. In other discussions, such as the FDA, there should not be laws on what a company can do- if they harm you, you should be able to sue them. That is what a malpractice lawsuit is- somebody feels they were harmed and want to sue to recover what they lost by being harmed. Halting or limiting takes away that power. So in one area it seems that people should be able to sue- on the other hand, the right to sue should be limited.

The concept of "loser pays" could also restrict the abiliby of some people to file suits to protect their rights- if they lack the funds to persue a case, should that prevent them from filing in the first place? It also sets up a system which favors those with money (say corporations).

[Acala]

I am a bit confused at the Libertarian responce on this issue. Perhaps somebody can help me out. In other discussions, such as the FDA, there should not be laws on what a company can do- if they harm you, you should be able to sue them. That is what a malpractice lawsuit is- somebody feels they were harmed and want to sue to recover what they lost by being harmed. Halting or limiting takes away that power. So in one area it seems that people should be able to sue- on the other hand, the right to sue should be limited.

In my opinion, a lawsuit to recover what has been lost in an accident, to make the plaintiff whole, to put the plaintiff back to where he was before the injury, is fine. In fact it is a good thing. But big problems arise when the law allows the injured party to PROFIT from the injury - to come out ahead of where they were before the accident. This not only drives fraud, but drives people to go to court when they would otherwise just resolve their disputes privately. Punitive damages and damages for "injuries" that cannot be repaired, such as "emotional harm", add the profit motive to a system that should only be about correcting wrongs and making things even.


The concept of "loser pays" could also restrict the abiliby of some people to file suits to protect their rights- if they lack the funds to persue a case, should that prevent them from filing in the first place? It also sets up a system which favors those with money (say corporations).

The concept of "loser pays" also called the English Rule because it works fine in the UK, does not inhibit legitimate lawsuits because lawyers can determine a winning suit from a losing suit and will not take the losers but will take the winners regardless of the plaintiff's money because they know they will get paid in the end. But because both parties risk paying the other's costs, there is pressure for both of them to resolve the dispute early and without going to court, which is optimal.

[Acala]

The concept of "loser pays" could also restrict the abiliby of some people to file suits to protect their rights- if they lack the funds to persue a case, should that prevent them from filing in the first place? It also sets up a system which favors those with money (say corporations).

Since I have probably already killed this thread with my massive post, I'll go ahead and post a chapter from my book dealing with this issue. Please note that in the book I use the word "graft" to refer to use of the system to obtain unearned profit:

The court system in which tort litigation plays itself out is provided at essentially no cost to the parties to a lawsuit. While there are some small fees for filing papers, the vast majority of the cost is born by the taxpayers. And the costs are significant. The court system employs judges, clerks, secretaries, guards, and facility maintenance personnel. And courts require buildings. Big buildings to house big courtrooms, big file rooms, big jury assembly rooms, offices, judges’ chambers, etc. And because judges typically were successful lawyers before they became judges, they like to be surrounded by nice things,
so these big buildings are often opulent. And these big, opulent buildings are usually located in the center of the largest city in the county. As a result, these big court buildings tend to sit on very expensive chunks of real estate. To avoid further detour down this side road, let it suffice to say that it costs a lot of money to run a court system and the people who benefit from it - the parties to lawsuits - do not pay for it. The taxpayers pay for it. This isn’t fair.

In the current tort system, it costs next to nothing to initiate a lawsuit. And in the case of a tort lawsuit, the plaintiff attorney is usually paid with a contingency fee. That means that the plaintiff doesn't pay the attorney anything unless and until they win some money. So not only does it cost next to nothing to initiate a lawsuit, it costs next to nothing for the plaintiff to pursue a lawsuit all the way to judgement at the end of trial. Consequently, there is no downside for a plaintiff to bring a lawsuit that he knows he has very little chance of winning. If he wins, he can count on graft with which to pay the attorney. If he loses, he walks away leaving the taxpayers to pay the court costs, the person he sued to pay his own costs of defending the suit, and his attorney with nothing for his efforts. For the tort plaintiff, a lawsuit is a free lottery ticket. If he wins, great! If he loses, no harm done (to him). Not surprisingly, plaintiffs are not at all inhibited from filing even the most frivolous of lawsuits. Plaintiff attorneys are a bit more reluctant to file truly frivolous suits because they pay for the litigation with their time. A plaintiff attorney will not spend much effort pursuing a lawsuit that has little chance of success. And he will not bother at all with a lawsuit against a judgement-proof defendant.

The lawyer for the defendant in a tort lawsuit will often convince his client that the best approach to defending the lawsuit is to work the plaintiff lawyer to death responding to defense initiatives and make him question whether he is going to recover for his effort at the end of the case. In the process, the defense lawyer runs up crushing legal bills which the defendant must pay as they are incurred. It also stretches the case out for years while the defense lawyer attempts to beat down the plaintiff lawyer. Of course all successful plaintiff lawyers have learned to stick it out. Eventually, even if the defendant is certain that he is not liable, the cost of defense may threaten to surpass the cost of simply paying what the plaintiff is asking for. This provides further incentive for the filing of meritless lawsuits because the cost of settling a meritless lawsuit is often less than the cost to the defendant to pay his lawyers to defend it. So the defendant will often settle even a frivolous lawsuit for this “cost of defense”. Unfortunately, the defendant rarely realizes how expensive it is to defend a frivolous lawsuit until he has spent considerable funds and not seen any progress.

The system, as currently structured, encourages meritless lawsuits, protracted litigation and high lawyer fees. And the taxpayer pays for the arena for this battle. However, some minor changes can turn these perverse incentives around.

Ideally, what we really want is a system that encourages people to resolve their disputes without resort to courts and lawyers. But people with legitimate claims should be able to bring their claims to court if they cannot get the defendant to pay for the damages he caused. On the other hand, defendants should not feel pressured by the cost of defense to pay for damages for which they are not truly responsible. And the taxpayers should not have to foot any of the cost. So what to do?

Suppose we require the party that loses a court case to pay the REAL costs. The entire cost of running the court system can be broken down and allocated on a time and labor basis to the lawsuits that use the system. Requiring the losing party to pay this actual cost would inhibit plaintiffs from bringing cases they don't think they can win and would inhibit defendants from trying to defend cases where they know they are liable. If you further require the losing party to pay the attorney fees of the winning side, you have additional incentive to not litigate unnecessarily and to settle quickly any case that does go to court. An additional benefit is that when a plaintiff wins a case, he would not have
to pay his lawyer out of his damage award thereby allowing him to be fully compensated for his damages without having to allow graft in the recovery since his lawyer’s fees would be paid by the losing side.

While having a tort system that generates graft is a disaster, a system that prevents plaintiffs from ever obtaining full compensation because they must pay their lawyer out of their compensation is unfair and does not achieve the goal of putting the injured party where they were before the incident. Having the loser pay the winner’s lawyer’s fees solves this problem. This is called the "English Rule" because it is the practice in Great Britain for the loser in a civil suit to pay the lawyer’s fees of the winner. It works quite well for the British (and most of the rest of the world).

It might be argued that forcing the losing party to pay for the cost of the lawsuit would inhibit people from bringing legitimate disputes to court to be resolved. This may be true. However, when you reflect on the fact that approximately 95% of all lawsuits settle out of court before trial, it becomes clear that the court system is not being used to resolve disputes but is rather being used as a tool in a lawyer's game of chicken. Most disputes should not go to court at all. The courts should be reserved for disputes that cannot be resolved out of court - those disputes in which one party is being unreasonable.
And when one party is preventing a resolution by being unreasonable, it is appropriate for them to pay the court costs and the lawyer fees of the winning side.

[Zippyjuan]

Thank you for the information.

[libertarian4321]

The concept of "loser pays" could also restrict the abiliby of some people to file suits to protect their rights- if they lack the funds to persue a case, should that prevent them from filing in the first place? It also sets up a system which favors those with money (say corporations).

"Loser pays" is a good idea. That way, only those cases where the company has truly conducted itself badly will go to court. Juries will award those who have been truely hurt by the bad deeds of companies.

However, people with weak/suspect cases will have to know that they could get burned if they pursue action against a company- in other words, there will be consequences for people who take shots at companies for BS reasons.

It will help ensure that ONLY legitimate cases go to court, and will greatly reduce the "lawsuit lottery" type cases where lawyers sue anyone with money for almost any BS reason, just hoping they get lucky and get a sympathetic (and stupid) judge and jury that will make them rich.

The downside of "loser pays" is that the companies who print all those moronic legal notices stuck all over every product will suffer a huge loss of business- you know, the stuff like "Warning: contains nuts" on a package of peanuts...that one probably got started when someone with a peanut allergy got sick from eating them.

[pcosmar]

The downside of "loser pays" is that the companies who print all those moronic legal notices stuck all over every product will suffer a huge loss of business- you know, the stuff like "Warning: contains nuts" on a package of peanuts...that one probably got started when someone with a peanut allergy got sick from eating them.

http://img238.imageshack.us/img238/262/peanutwarningte3.jpg

http://img2.moonbuggy.org/imgstore/warning-these-peanuts-may-contain-peanuts.jpg

Yup,, I love stupid warning labels.
:rolleyes: