I think tort reform is something that certainly needs to be discussed,
but I just wonder how come all the people offering suggestions to this
"huge" problem haven't bothered to figure out how the system works
currently. A disclaimer: I am a lawyer, but I have nothing at all to
do with tort law (most lawyers don't).

There is no real deterrent in the system for
any lawyer to "roll the dice" and see what happens.

Really? Do you have any idea who fronts the costs for this losing
lawsuit? The lawyer. Even if the costs are only $20k as you suggest
(a very low number) that's a certain amount of "deterrent". Yes the
fee contract says the client is responsible for the costs, but most of
the time they can't come anywhere near affording them and the only way
the costs are reimbursed is out of a settlement (what you get if you
settle out of court) or judgement (what you get if you win in court -
juries and judges don't give settlements). Even if the client can
afford the costs many times the lawyer can't get paid back because the
client blames them for the loss and the lawyer risks a malpractice
lawsuit if they try to collect. But still, I will agree this must not
be too huge a deterrant because frivolous lawsuits keep getting filed.

Client wins ten mil settlement.....lawyer gets
3.3 mil less time filing papers, phone calls, research, and a few days in court,
let's say $20k. Client loses.....cost $20k

filing papers, deposition transcript costs (depositions taken by other
side), deposition court reporter and transcript costs (depositions you
take), expert fees (including travel time and time spent sitting
around waiting for trial to start only to be told their aren't enought
judges and you are going to have to come back in 3 months), time the
lawyer sets aside for trial only to be rescheduled by the court at the
last minute, time in court for status conferences and settlement
conferences, time for arbitration or mediation (a mandatory precursor
to trial in some jurisdictions and with some kinds of cases), and so
on. All of this normally comes out of the client's (plaintiff's)
pocket if they win (judgement) or settle (settlement), but if not, the
lawyer often eats these costs.

But change that to Client loses....cost $20k + $500k (defendant's cost)=$520k.

How come the plaintiff's costs are only $20k and defendant's costs are
$500k? I assume you are including the defendant's legal fees in
"costs" but not mentioning the plaintiff's legal fees if defendant
loses. If the plaintiff loses then most likely their own lawyer is
out the $20k in costs and the plaintiff (not their lawyer) is
responsible for the $500k in defendant's costs. This is the same
plaintiff that cannot afford to pay back their own lawyer for costs.

And won't
most defendants be more willing to fight it out in court if the cost of winning is $0."

Why wouldn't they also factor in the cost of losing if they go to
court? Not only would they have to pay a judgement, but the
plaintiff's costs as well. The proposed loser pays costs system does
not only work in one direction. I would also point out it is not
only plaintiff's who use the cost of litigation as a way of squeezing
settlements out of the other side. Defendants also use this leverage
when negotiating with plaintiff's.

A lot of frivolous cases won't even be filed if a lawyer has to put a half mil of his
own cash on the line."

Neither will many cases with merit. Remeber it is not always the poor
helpless defendant versus greedy trial lawyers and their even more
greedy clients.

Oh yea, and make them post a bond to cover the defendant's estimated expenses
before the case goes to trial.

Why wouldn't the defendant then also have to post a bond to cover
plaintiff's costs if plaintiff wins?

A better solution all around is to simply get rid of juries in civil
cases. If juries were rational in their decisions then defendants
wouldn't be afraid of frivolous suits going to trial and trial lawyers
(a very imprecise term since it really also includes the lawyers going
to trial for defendant) won't be as interested in taking the frivolous
cases because they won't be able to use the leverage of defendant's
fear of juries. But juries for the most part are not rational. There
is a joke about defendant's not wanting to be tried by a jury of 12
people too stupid to get out of jury duty.

The alternative to juries could be a judge or group of judges in
combination with court selected experts of the appropriate specialties
for the trial. The experts would be chosen by the court so that they
would not tend to have allegiance to one side or other since they
wouldn't have to worry about getting future work from one side or the
other. The experts could be paid for by the parties equally or by the
loser or however else sounds like a good idea.

I am not trying to pick on you Nomen, no one else posted a response
showing any more knowlege of how the system works. This is actually a
good example of how our society has become too specialized for
lawsuits with basically unlimited costs to be decided by lay juries.

I also do not think the loser pays system is a completely bad idea.
The entire rest of the western world uses it and has for a very long
time and there aren't any real moves afoot in the other countries to
change it. It works as well in countries as different as Sweden and
Portugal. There's no reason why some version of it wouldn't work
here. I just think that in order to have an adequate argument over
making a change there should be some REAL, not anecdotal, knowledge of
how the system works now.




On Sun, 18 Jul 2004 07:50:05 +0200 (CEST), Nomen Nescio
] wrote: