Does anyone really care about "Lawsuit Reform?"

[Rex]

I am biased because I clerk for a personal injury attorney, but of all the things that need fixing in this state, should it really be at the top of the agenda?

Also, it seems that capping damages prevents ordinary working people from getting compensated when they are injured by a company. (We do not put individuals in jail for releasing bad drugs, hiring negligent semi truck drivers, etc.) Capping fees seems it discourages lawyers from taking cases for people who have no money.  Thus, the poorest of society are prevented from seeking a redress of their wrongs.

According to my boss, "frivolous" and "junk" lawsuits don't make it very far.  The lawyers who push them don't make it very far either.

It just seems "lawsuit reform," like the  "immigration problem," is a means of distracting Oklahomans from our real problems; education, failing infrastructure, lack of health care insurance, drug abuse and teen pregnancy rates.

It boggles my mind how the people in a state with such a populist origins, continue to elect lawmakers who seem to put the interests of the insurance industry and business ahead of what is right and fair for working folks.

[Hometown]

Tort Reform is all about protecting business from being responsible for their bad business practices and depriving working people from seeking compensation for damages they suffered at the hands of negligent business.

I too am amazed at Oklahomans being hoodwinked into voting against their own self interest over and over throughout most of our history.

My best guess is that we are dealing with simple people who don't have the information or analytic skills to make good decisions and unprincipled Republicans working for big business.  "So-called churches" that push big business' agenda are also a factor.

The left needs candidates that talk in the same language as the country folk so that we can frame the issues in a way that these people can understand.

[Red Arrow]

I have no problem with people recovering damages.  Going for deep pockets rather than only the group responsible is wrong. If big business must be punished, the punitive damages should go to a charity of some sort. Why should someone become rich just to punish some company?  The injured person is frequently guilty of doing something really stupid.  If the company being sued is found not guilty, should the company be entitled to sue for damages to the reputation of the company, expenses and to punish the original plaintif?  Seems fair to me.

It's popular to complain about the salaries of CEOs of big companies.  Maybe the fees for lawyers in these type cases should be limited to standard hourly rates.  If you have a good case, some lawyer will be willing to take it.

[guido911]

I'm all for it. I personally see numerous BS lawsuits come across my desk that are solely intended to shakedown people for whatever they can get.

[waterboy]

We all have our favorites. Mine was a fellow airboat operator in southern Oklahoma who volunteered to help rescue people during a flood. He pulled a young man from certain death when no other boats were able to reach him. As the boy was being pulled from the water, a submerged log hit his leg and broke it. The airboat operator was sued by the boys parents.

On the flip side, I've worked for several companies in the last few years in low level jobs. I am astounded at the risks they expose workers to for such little monetary gain. Employees are threatened with dismissal, harassed and forced into unhealthy or unsafe activities and when they do threaten to sue...they're fired.

If reform means tipping the balance one way or the other, I'm not interested.

[cannon_fodder]

1. "BIG" cases are big gambles.  An hourly rate will not work in many instances.  The attorney often puts in months and months of work at the risk of not getting a dime... if he wins he can win big.  Many firms can not afford the gamble as it stands (with the potential for a big win), shift the paradigm more (hourly rate/award cap) and very few if any firms would take the hard cases.

2.

quote:The injured person is frequently guilty of doing something really stupid.

Comparative fault.  An injured party has their damages reduced by the amount of FAULT they are assigned.  If you are awarded $100,000 but you are 25% responsible for the injury you only collect $75,000.   If you are more than 50% responsible, you collect nothing at all in some jurisdictions.  

Hence, you are still responsible for your own stupidity in the current system.

3. As far as punishing the original plaintiff - if the case is thrown out as frivolous sanctions will be placed on the attorney and the plaintiff can be made to pay the other sides attorney fees.  If the matter is a dispute that a court rules proper for adjudication, then neither side should be punished for pursuing their claims.  

Another situation where a remedy is already in place.

4. Per the air boat operator, there are good Samaritan statutes on the books that protect such people from all liability but-for gross negligence or intentional acts.  If you stop along side the road to help and put the tire on wrong, you are protected from liability unless you hit the person with the tire iron or failed to install the lugs at all and told them "OK drive off!"  

Again, a situation that is already on the books.

5.  Guido:  There are numerous BS lawsuits.  But most of them don't make it very far and SHOULD be dealt with earlier on.  What's needed is NOT more rules, procedures and laws limiting actions.  What's needed are judges who are willing to stand on the rules that exist.  Trust me, they're out there.  

Most of the people lobbying for change are doing so on their own agenda.  To protect their business, their livelihood, or otherwise.  Clearly the other side pushes back with their agenda.  

But most of the people that clamor for reform don't really understand how the system works or what rules are already in place.  Comparative fault, frivolous fees statutes, good Samaritan statutes, 12B6, the procedures and rules exist to get rid of poor suits.  A situation of people who don't fully understand the system trying to fix was isn't necessarily broken.

If all the reforms the defense bar wants go through you end up, at a certain point, limiting citizens access to the courts and alternative remedies will be sought.  If the plaintiffs bar god their rules business would be nearly impossible to conduct.  Enforce the rules that are in place now, allow judicial discretion to play a role, and lets move on.

[guido911]

CF:  

I am curious as to your bases for believing that numerous BS lawsuits do not make it very far? I have been a civil defense attorney for 8 years and have seen these sorts of cases having to go away by means of summary judgment. You're an attorney, when was the last time you had a motion to dismiss granted on grounds other than by procedure defect (i.e. lack of personal juris./defective service of process).  Oklahoma's liberal notice pleading and right to amend guarantees every moron attorney or pro se plaintiff to plead and replead their claims.  
Now, to get to summary judgment, a victim of these lawsuits must expend thousands of dollars in attorney fees and dedicate countless hours of their attention to matters other than what is really important--that lawsuit. If you are fortunate to have on these thrown out at summary judgment, then the appeal comes.

Trust me, I could tell you personal stories of these BS lawsuits. I had one civil conspiracy case that had been filed and refiled in several different states and forums over decades. It lasted so long that my mere entry of appearance in the matter resulted in me being identified as a witness to the "consipracy" in a subsequently refiled version of the action (after it had been dismissed).  

I believe some people that oppose tort reform are more interested in career preservation. I remember about 2 years ago when Gov. Henry was considering a sweeping tort reform bill I received voluminous e-mails and phone calls from members of the the Oklahoma Trial Lawyers Association, the ABA, and plaintiff lawyers begging me and members of my firm to call the gov and urge a veto.

Rex & HT:

It boggles my mind how you and many others refer to those apparently not well off as "working people". Explain to me what makes a person a "working" person? Are you implying that if you make under a certain amount you are working and those making more than that are not? If so, stop with the code BS and label people for what they are "haves" and "have nots".

[Rex]

Hey Guido:

My original name was CazzoRex until the forum changed it.  So to you I'll ask Che cazzo medici?  Cause your tone is pretty cazzo.

I'm a student and a working person.  My boss is a working person.  Frankly, he seems to work like an animal, and it seems to have paid off in spades, he seems to be a "have." So what?  I showed him your post and he made two comments:

"I went to law school to make money. Helping people and making money are not mutually exclusive. People who say the became a lawyer for another reason are either lying, or have a "cause." Either way, God bless them."

"Defense lawyers who are pro tort reform are like guys who squat with their spurs on. They are going to get stuck in the a** at some point."

Which, in all due respect, if no one files lawsuits, what will you do for a job?  Are you so pollyannish that you would gladly do something else if no one ever again filed a lawsuit?

The term "working people" probably does mean people who are not quite as well off. People who don't get to sit inside a cushy office and type away on message boards all day. Like it or not, they are often the victims of your type of clients' misdeeds.  They can't afford your hourly rates. Why shouldn't they have a mechanism to seek justice?  

On the "career preservation" gibe: what's wrong with lobbying to protect one's career? That is done every day.  

I don't know you.  I have read some of your posts, and don't really have an opinion about you one way or the other, but I will submit this to you; plaintiffs' lawyers are risk takers. They have big egos and probably are not themost pleasant guys around, but they do help people. They take risks and sometimes get rewards.  Why be resentful?

[Rex]

Hey Guido:

After rereading my post, I sound pretty heated. I was not trying to attack you personally and apologize for coming off that way.  Based on where I work, I think I sometimes have a skewed view of reality ha ha.

What I want to say is this:

Poor people need some type of recourse against the "haves" (be they big companies, whatever).

Punishing a company in the pocketbook is the only way to punish a company.

The people who do this sort of work are making an investment.  They should get get a return on their investment of time and money.

The market should determine what these folks can contract for.

It seems unfair to prevent the "have nots" from pursuing justice by taking the incentive away from the lawyers who could help them, because a law practice is also a business.

To me, this is just common sense.  Hometown's post is right on.

[cannon_fodder]

Guido,

I agree that the rules should be more readily enforced to dismiss actions that are without merit before summary judgment.  The problem is three fold as I see it:

1) PARTIES: Clients and attorneys who are willing to file crap as well as defendants who are willing to pay to make things go away (PR, short term economics, etc.).  Also, for as many BS claims that plaintiffs lawyers bring, there is at least an equal number of BS motions to dismiss that are brought by defense lawyers - thus reducing the effectiveness (it has become in essence boilerplate).

2) Dockets that are too full for Courts to properly review cases before all parties are invested in the case.  

and 3) Judges that are too scared to dismiss a case and be accused of letting big business or some horrible person get away with something.  

I would be in favor of a law or rule or even movement to get judges to more appropriately adhere to summary disposition rules.  So long as it applied to all parties and a BS defense was tossed along with BS claims.  And why, DEAR GOD WHY, do courts let Pro Se defendant's and plaintiff's get away with so much horrible crap!

Anyway, I'm saying it is not the lack of rules that is causing the problems.  It is a lack of proper utilization of those rules by plaintiffs bar, defendants bar and the Courts themselves.

[guido911]

quote:Originally posted by Rex


"Defense lawyers who are pro tort reform are like guys who squat with their spurs on. They are going to get stuck in the a** at some point."

Which, in all due respect, if no one files lawsuits, what will you do for a job?  Are you so pollyannish that you would gladly do something else if no one ever again filed a lawsuit?

Pollyannish because I support limitations on BS lawsuits and sanctions on those that bring them? Fine. I'm pollyannish. As for decrease in lawsuits resulting in my losing my job? First, assuming that I would not turn my attention from the civil courts to some other area of non-litigation law (criminal, transactional, etc.) that could happen. To be honest, I am at the point in my life where it does not really matter.

As for your comments on "working people", I guess I do not qualify because I work indoors  make a good living. Sounds like somebody's an envious "have not."

Plaintiff's lawyers are "risk takers"? I agree that some are, but some are also bottom feeders. That comment and those in ths thread are not expressions of resentment. This is about not having a legal system set up to be a lottery where all of us are forced to play. Do you want to know what pollyannish really is? It's the idea that when we punish the big bad companies with massive judgments that only those companies suffer. Those financial losses are borne by the employees and shareholders of those companies (you know, your friends and neighbors) and the public that needs those company's products--for which they will now have to pay more. And don't give me that "insurance" crap either. Many victims of frivolous lawsuits don't have coverage and those that do will most likely have their rates increased.

So you, your boss, and anyone else keep defending the status quo, in which the following takes place:

Less than two hours ago I got a call from someone who wanted to sue his former employer because he got terminated. Was he discriminated against? No. Was he a whistleblower? No. Was he hurt on the job and fired for filing a comp claim? No. He wanted to sue because he was  upset that he lost a job he had for several years (this despite the fact he immediately found work in his industry earning exactly the same). That's the sound of the mentality of the status quo that I cannot stomach: Life's unfair, I am going to sue someone.

[Hometown]

Popular usage.  Working class is the polite way to refer to the lower class.  It spares their feelings.

Definition of Working Class from Webster's Dictionary.

working–class
adjective
Date: 1839
: of, relating to, deriving from, or suitable to the class of wage earners <working–class virtues> <a working–class family>.

Now I am pretty comfortable and I have hired attorneys on several occasions and have to tell you that I could not afford to hire a litigator if he or she were not willing to take my case on contingency.

And they would not take my case unless they believed it had merit and they could make money on the case.

[guido911]

Another evil corporate empire under litigation siege brought to you by the poor working class:

http://www.caller.com/news/2009/jan/13/local-man-sues-hooters-claims-gender-bias-seeks/

[Red Arrow]

quote:Originally posted by cannon_fodder

Anyway, I'm saying it is not the lack of rules that is causing the problems.  It is a lack of proper utilization of those rules by plaintiffs bar, defendants bar and the Courts themselves.

Why should we expect the legal system to be any better at self regulation than Wall Street?

It's time for change.

[Red Arrow]

quote:Originally posted by cannon_fodder

1. "BIG" cases are big gambles.  An hourly rate will not work in many instances.  The attorney often puts in months and months of work at the risk of not getting a dime... if he wins he can win big.  Many firms can not afford the gamble as it stands (with the potential for a big win), shift the paradigm more (hourly rate/award cap) and very few if any firms would take the hard cases.

2.

quote:The injured person is frequently guilty of doing something really stupid.

Comparative fault.  An injured party has their damages reduced by the amount of FAULT they are assigned.  If you are awarded $100,000 but you are 25% responsible for the injury you only collect $75,000.   If you are more than 50% responsible, you collect nothing at all in some jurisdictions.  

Hence, you are still responsible for your own stupidity in the current system.

3. As far as punishing the original plaintiff - if the case is thrown out as frivolous sanctions will be placed on the attorney and the plaintiff can be made to pay the other sides attorney fees.  If the matter is a dispute that a court rules proper for adjudication, then neither side should be punished for pursuing their claims.  

Another situation where a remedy is already in place.

4. Per the air boat operator, there are good Samaritan statutes on the books that protect such people from all liability but-for gross negligence or intentional acts.  If you stop along side the road to help and put the tire on wrong, you are protected from liability unless you hit the person with the tire iron or failed to install the lugs at all and told them "OK drive off!"  

Again, a situation that is already on the books.

5.  Guido:  There are numerous BS lawsuits.  But most of them don't make it very far and SHOULD be dealt with earlier on.  What's needed is NOT more rules, procedures and laws limiting actions.  What's needed are judges who are willing to stand on the rules that exist.  Trust me, they're out there.  

Most of the people lobbying for change are doing so on their own agenda.  To protect their business, their livelihood, or otherwise.  Clearly the other side pushes back with their agenda.  

But most of the people that clamor for reform don't really understand how the system works or what rules are already in place.  Comparative fault, frivolous fees statutes, good Samaritan statutes, 12B6, the procedures and rules exist to get rid of poor suits.  A situation of people who don't fully understand the system trying to fix was isn't necessarily broken.

If all the reforms the defense bar wants go through you end up, at a certain point, limiting citizens access to the courts and alternative remedies will be sought.  If the plaintiffs bar god their rules business would be nearly impossible to conduct.  Enforce the rules that are in place now, allow judicial discretion to play a role, and lets move on.

1. A case that is a big gamble is maybe not such a good case.  I was only thinking of a standard hourly rate as a cap, not a minimum. A good case could still be taken on contingency with reasonable expectation of financial reward. I think of contingency cases as a retail sales person on commission. You win some and lose some.  It's part of the business. I don't want my next suit jacket or car to cost more because the previous customer didn't buy and now the sales person needs to make up for lost time.

2. Comparative fault. Nice idea, I'm not convinced it actually works in little guy vs. deep pocket defendant.  In our entitled society, hardly anyone will take any personal responsibility for their actions.  It's someone else's fault.  

3. If a company is sued and loses, I am sure the winners legal fees are covered by the loser.  If the company wins, I am sure the company pays their own legal fees.  

4. If you don't have anything to take, be a good Samaritan. If you have any assets, it's better not to help.  It goes against my nature to not help if I can but I cannot risk my future to today's lawsuit society. The good Samaritan law didn't help the airboat operator. He should have let the kid drown.  Harsh but reality. Hitting a person with a tire iron should be assault, different subject. If you put a compact spare on the axle that could cause drivetrain damage if driven too fast or to far and the driver ignores the car owner's  manual instructions, you have comparitive fault for enabling the driver to drive away. Get ready to empty your wallet.

5. There may be judges out there that will stand on the rules but it only takes a few to wreck the system.  

Our lawsuit happy society makes it difficult to make product improvements. Just as soon as a manufacturer improves a product, they have admitted that the previous product was inferior. Can you say lawsuit?  If a product met the governmental and commercial safety organizations' specifications at the time of manufacture, a company should not be able to be sued for not meeting newer regulations.