LAW: "Frivolous Lawsuits" (Was: Cryonics on ABC World News Tonight)

Date: Tue Feb 20 2001 - 07:44:14 MST

In a message dated 2/14/01 9:08:39 AM Central Standard Time, writes:

> Frivolous lawsuits in the US are just plain destruction of property.
> You take your pile of money and then go cancel out someone else's
> pile of money, creating three losers: the plaintiff, the defendant,
> and the people in the US who deserve a better justice system - and
> you get two winners: the plaintiff's attorneys and the defendant's
> attorneys.

Yes - "frivolous lawsuits" are by definition wasteful. A legal system that
functions well has mechanisms for shutting such suits down in their early
stages, before they cause unnecessary costs to defendants who shouldn't have
to go through the full litigation process. In fact, such mechanisms still
work quite well in the vast majority of suits.

When thinking about how the legal system in the US works, consider that good
information about the system does not make its way into the consciousness of
population at large through the mainstream media. As I have explained here
before, newspapers and television networks make money by selling sensation,
and the fact that a frivolous suit has been dismissed in its early stages
isn't considered to be "news".

What in fact happens in the vast majority of cases is this. A class action
suit is filed. The plaintiffs' lawyer sends a copy of the petition to lots
of reporters. They read the inflammatory allegations and the huge figure
cited in the petition as the damages claimed by the plaintiff. This gets
case is dismissed three months later on a motion to dismiss on the pleadings
or a motion for summary judgment, Giant Co.'s publicist can't interest the
mainstream media in the story. If it gets reported, it shows up as a tiny
item on the back pages of the business section.

A recent example of this is the life and death of the silicone breast
litigation. The cases were big news when they were started. What has been
grossly under-reported is that the litigation has completely fizzled out as
the science has slowly but surely shown that there was ZERO factual basis
these suits. The big-time (and very talented) plaintiffs' lawyers who were
pushing this litigation three years ago have been bailing out in droves now
that that the results in court aren't justifying the huge cost of
the litigation machine they had to build and run to keep the suits going.

Again, let me stress the positive effects of the "private policing" function
that plaintiffs' lawyers serve in our system. I watched "Erin Brokavitch"
this weekend, fully expecting to hate it (not least of which because I've
the consistent opinion that Julia Roberts was a no-talent "celebrity"). I
was pleasantly surprised. Although the screenplay does cut some corners
legal technicalities and tends toward a fairly shallow characterization of
the "Bad Guys", it does preserve the essential logic of how a MERITORIOUS
toxic-tort "mass-action" is developed and run in a system of private
prosecution. Especially well explained in the film's plot is how the
plaintiffs' lawyers have to shoulder personal financial, professional and
emotional risk in the process during its very expensive early stages. (And,
I have to admit, Julia Roberts does a superb acting job in the film.) I
HIGHLY commend the film to both Americans and non-Americans as a good lesson
of how the system works.

> As I understand it, the British use more of a "winner takes all"
> method in deciding legal disputes. Is that correct? Although I'm
> not real hip on the wigs, I think that we could do well to adopt some
> of those methods.

That's right. The system in the UK is traditionally "winner takes all" (and
is therefore called "the English system" in US jurisprudence) and, while
serves as a STRONG incentive against frivolous lawsuits, it also acts as a
disincentive to the kind of private policing the US system encourages.
has also been a traditional antipathy in the UK to contingency fees, which
has the same positive and negative impact on their legal system.
Interestingly, a system of private insurance against the liability for the
other side's legal fees has developed in the UK, which has somewhat served
create a private market in legal claims, as the contingency fee system does
in the US. Under that system, a plaintiff and her lawyer can interest
private insurance underwriters in a claim, which allows the insurers to in
essence "invest" in your suit through taking premiums, which is functionally
equivalent to the way a plaintiffs' lawyer does in the US.

Also, note that US law has adopted the "English rule" rule in many kinds of
cases. Attorneys fees are routinely ganted as an element of damages in
contract cases in the US under various state statutes. Even in tort cases,
there are mechanisms for recovery of one's own attorneys fees (although I
won't go into the significant complexity of how that's done).

As for the wigs, I personally think they're a good idea. They tend to
signify the solemnity and importance of what's being done - something we
could use more of in the US, I think.

       Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness
Guide -or-
                                           ICQ # 61112550
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our
                                          -- Desmond Morris

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