Eccentric Flower:200907/Non Certiorari
From Eccentric Flower
Non Certiorari
Roy Pearson's lawsuit over losing his job has been thrown out. This is distinct from his appeal of his lawsuit over a pair of pants, which has also exhausted all its avenues. (Full timeline.) He apparently missed the deadline to file a petition for certiorari to the Supremes on the latter, which is a damned shame because it would have been fun to watch them laugh in his face.
It's not enough that Pearson never work as a judge or a lawyer again. Pearson should never work again. In fact, Pearson should never be allowed to interact with other humans again.
No one is ever going to get back the money and the time that has been wasted by this man.
"Tort reform" is a dangerous phrase, because too often what's being pitched to the public as tort reform is actually big corporations trying to make it harder for consumers to sue them. This includes the frequent spreading of misinformation, some of it passed along by the misguided public (who love a good urban legend that allows them to be disgusted with the system).
For example, the McDonald's hot coffee lawsuit was not frivolous, and anyone who cites that as an example of the system gone awry has not bothered to read the facts of the case.
For what it's worth, I agree that the ridiculous, eye-catching lawsuits with huge windfall amounts don't actually fly all that often, and that they are a distraction, a red herring. (The public loves to rant about them though.) I'm more concerned with the people, and corporations, who continually use lawsuits for purposes and causes other than the matter which is actually being disputed. Roy Pearson's lawsuit wasn't about a pair of pants; it was about Pearson's grudges and his ego and so on. Pearson did not, in my opinion, want justice; he wanted scorched earth. We also have continual examples of the lawsuit-as-intimidation-tactic, which used to be just a tool of the corporations but is rapidly gaining popularity among individuals as well, and of course the ever-popular lawsuit-as-get-rich-quick-scheme, which is and always has been utterly odious. These are triumphs of bad behavior over good sense. A lawsuit should be about what it's about, and only that - not a tool for political or personal gain.
How do we trap the Roy Pearsons of the world without taking away anyone's ability to try to keep others from screwing us over?
One possibility might be to lower or alter the qualifications for vexatious litigation - but then, that seems like it could be just as subject to abuse, or even more so. Imagine what would happen if someone who was a legitimate consumer advocate and gadfly got branded as a vexatious litigant - essentially barring that person from all lawsuits in the future. The average corporation would salivate at the chance to permanently remove one of their irritants from the game.
I suppose there's a similar problem with bringing back stiff and consistent penalties for barratry, but I can dream. (In Texas barratry is a felony! But the article doesn't say what the standards are, nor which kind.)*
Snopes again:
I'm sorry to say - sorry, because this statement is potentially offensive to people I'm not actually accusing of this sin - that I tend to believe the whole reason that this issue has never been sanely resolved is because the people who are best-positioned to resolve it sanely are the ones who have the least interest in resolving it at all.
After all, an insane legal system does benefit one group of people. I think even the ethical lawyers, the ones who have an interest in a better, saner, simpler legal system, would have to concede that there are plenty of less ethical lawyers who have an interest in keeping the waters as muddy as possible.
Of course, it could just be that reforming tort law sanely is very, very hard. But I'm not convinced that anyone has yet made a serious attempt.
* There are two kinds of barratry, broadly speaking: repeatedly using the law for harrassment, or unseemly solicitation of legal business by lawyers (i.e. ambulance chasing).** I don't like either, and I am theoretically in favor of broadening the standards for both, but it is the first which is apropos to this discussion.
** One day I will do the rant about how I consider virtually all advertising for individual professional services to be unseemly. I used to think it was just me hating on lawyers; then I realized I am equally put on edge by doctors advertising, and plumbers, and so forth. Basically, if you take out an ad for yourself, I'm going to assume 1) you do sub-par work and 2) you have no shame. I don't claim this is reasonable of me.
Wait, how else are you supposed to get your name out there, as a plumber or dry cleaner or pizza maker or lawn service, if you don't advertise? The competition is fierce. I get heartburn over ads for medications about which you should "ask your doctor if this is right for you." That's shameless. So are the mesothelioma guys and the asbestos guys and the ones who claim your kid got CP from an incompetent OB. They're beneath contempt. But ordinary, everyday small businesses need pub, or nobody will know they're there.
I had trouble with the idea of John Edwards ever being president. That, to me, would be tantamount to putting the fox in charge of the hen house. To me, he represents all that is unethical about litigators. I know, I KNOW there are valid tort claims, and innocent people need advocacy. But the number of, say, OB/GYN doctors who have dropped their malpractice insurance altogether, because it's so insanely expensive, are an indicator of what's wrong with the system. I think the very idea that, if you decline to dispute a frivolous claim made against you, then you are automatically presumed guilty, is scandalous. The burden of proof should be on the accuser, not the accusee. Again, doctors are a fine example.
I have always thought that the scalding coffee incident was more of a punitive thing, almost like class action. Putting hot coffee between your legs and driving is asking for trouble and stupid, stupid, stupid. And not worth millions of dollars in damages. A much smaller award would still have achieved the desired result, which I assume was getting McDonald's to cool the coffee a little. But imagine, if you will, the hefty chuck if change collected by the attorneys in that action. Wrong, wrong and wrong.
(Disclaimer: I have no idea the area of law ProfRobert practices, and nothing here is meant to be in any way personal--well, except the John Edwards part...)
-- 18:48, 31 July 2009 (BST)
Stella Liebeck wasn't the driver, and the car wasn't moving.
If a cup of coffee spilled in your lap requires skin grafts, something is wrong.
Moreover, Liebeck made a good faith attempt to recover only her medical costs first. The larger (and, yes, more punitive) amount came only after McDonald's (effectively) gave her the finger.
I did say I was unreasonable about the advertising thing. However, I personally would not value any but a personal recommendation for a lawyer. In the old days the lawyers did perfectly well for themselves by what would now be called "social networking." Of course, these days the gentleman's clubs are gone and no one joins the Knights of Columbus any more. I hear many reasons why people think those fraternal organizations were a bad thing, and perhaps they are right, but as usual I'm not always sure we've made forward progress.
-- 21:09, 31 July 2009 (BST)
I have a buddy who's an Elk. Tried to get me to join up. As I understand it, it's mostly a social club, but they do fund-raising for whatever happens to be their current cause célèbre. Basically harmless, and the networking can be beneficial. He met his latest girlfriend there.
That's pretty hot coffee. How do they get it that hot? Microwave? The point is, punitive damages don't have to be astronomical to be effective. A million bucks would have made them sit up and take notice.
I have personally had good results from consulting Legal Referral Services. I believe they are located in most major cities, and your first visit is free. I wouldn't use an attorney who advertised on TV, either, but I might look one up in the phone book. (Eeeep! I meant online! Online!)
-- 23:08, 31 July 2009 (BST)
The punitive damage amount in the coffee case was what jury determined was one day's profits from McDonald's worldwide sales of coffee. In that context, it's not that much at all. With large corporations, a million dollars is chump change. (I recall -- and this was over a decade ago -- talking to a transactional colleague who was doing some kind of SEC filing for a big client in which "material liabilities" had to be disclosed. I asked him how much a liability had to be to become "material" for this company's purposes, and he said $100,000,000.)
Now to try to recreate my eaten post: New Zealand has abolished tort law for all personal injuries in favor of a government compensation system. See http://en.wikipedia.org/wiki/Accident_Compensation_Corporation. Basically, it's just like workers compensation here, except for all personal injuries.
Such a system would put all the PI lawyers out of business and replace it with government-run program paid for by taxes, so it would never pass here, with the Trial Lawyers' lobby (who support Democrats) and the Small Government/Anti-Tax crowd (who support Republicans). It would be fun to see the SG/AT crowd go toe-to-toe with the Business Lobby, though.
The principal check on frivolous lawsuits by individuals is the plaintiffs-contingency bar. A lawyer is not going to take a contingency case unless he/she thinks there is something to it. But there are two problems with that system. First, it does not take into account strike suits -- that is, borderline suits against deep pockets with the intent to settle for just under what would be the defendant's cost to litigate. Second, it does not take into account meritorious suits for people with damages material to them, but not compared to the lawyers' effort to litigate. For example, if someone damages you to the tune of $50,000, you have a big problem, but no lawyer would take a case like that on a contingency unless it were a complete walkover (and it rarely is).
One way around the latter problem would be to adopt the English Rule (loser pays winner's fees and costs) for disputes under $500k or somesuch figure. But again, I doubt that would ever be adopted.
-- 23:55, 31 July 2009 (BST)
The tendency is to throw the baby out with the bathwater, i.e. restrict everybody's ability to sue, rather than penalize the filer of a frivolous suit. Perhaps frivolity is subjective, but judges can and should decide the merits of a case, right? If it's an obvious ploy to soak a deep-pocketed defendant, then the filer should get hurt in his pocketbook. Enough such judgments and perhaps the frequency would decrease a little? One can dream. Contingency suits are too much of an incentive to overcharge and inflate the so-called "damages" in order to make more for the law firm. That's a no-no.
-- 00:17, 1 August 2009 (BST)
ProfRobert:
F*&%&*$ thing ate my long comment. Will come back to it later.
-- 17:38, 31 July 2009 (BST)