"Hot Coffee" & Tort Reform

[Encryptshun]

Me too.

The story doesn't just smell fishy, it smells like an urban legend.

Edit -- in other news, a cup of hot coffee and a nice slice of tort sounds really good right now. It's tea-time.

Edit2-- back to the sammich, this is a quote from the NY Post story they ran on the guy back in 2008:

A doctor told him he had the symptoms of food poisoning, which Agnesini attributed to whatever contaminants may have seeped into his food, possibly from the melted plastic handle of the knife.

http://www.nypost.com/p/news/regional/i ... z1T9gpd4B6

Okay, granted I'm no biologist, but it states the plastic handle of the knife was melted. How hot do you think that bread would have to be to melt the plastic handle of a knife? I can make two assumptions there -- (1) hot enough that the bread would be burned; (2) hot enough that any bacteria living on the handle would be dead dead dead.

So that's 4 huge holes in the guy's story.

For what it's worth, I do believe we have a sue-happy society (although Isaac would know better, seeing as he's in law school) based on other countries but not nearly as sue-happy as the media claims.

[IBCoupe]

1. The number of lawyers doesn't say anything. Most lawyers are transactional. Do you not know what that means? Personal injury lawyers (the people you're convinced that you should be pisses off about) make up how large a percentage?

2. That's a legitimate suit. PetSmart has a policy if not caring about dog s***. It's intentional. I've witnessed a person go up to a clerk and say, "Dude, I just stepped in dog s*** in aisle 3." Clerk shrugged and said, "You're in a PetSmart. That happens." If a customer slips and falls, that policy of not responding when dog s*** is known to be on the floor is in trouble. What exactly do you think is wrong with that case?

[IBCoupe]

What's an overabundance? How many is too many? All in all, frivolous lawsuits cost American businesses over $865 billion per year, according to the Pacific Research Institute. That’s a whole 2.2 percent of the United States’ annual GDP spent on tort costs, compared to the United Kingdom’s 0.8 percent and Japan’s 0.8 percent. That from America's Best, the Magazine for small business owners. http://www.americasbestcompanies.com/ma ... suits.aspx

If the ABA is correct and we're about to see a 40% increase in the number of lawyers over the next decade, then one should expect a correspond increase in frivolous law suits.

Care to rethink your definition of "overabundance" my good man?

Pacific Research Institute is a biased source. It's a free market think tank, and I doubt its numbers. Want to find an objective study, instead? It's in bed with Philip Morris and Exxon Mobil to name a couple. They're even quoted as calling global warming into question because winter happened. Jesus, RT, you're proving my point for me: that Corporate America is crafting a myth to suit their profits.

[IBCoupe]

While I get (and agree with) what Isaac is pointing out, the fact remains that they DO exist, and the system often DOES fail.

I don't think it does. I think you need a citation for that claim: there are safeguards in place, and the fact that most of the cases on RT's link never materialized into a lawsuit or were quickly dismissed is telling.

[IBCoupe]

And here's a bunch of anecdotes to counter the bunch that RT posted. Note: one of them I already covered.

http://www.cracked.com/article_19150_6- ... -b.s..html

And, Greg, here's a website detailing the systemic safeguards I mentioned:
http://www.tortdeform.com/archives/2006 ... _laws.html

[IBCoupe]

For what it's worth, I do believe we have a sue-happy society (although Isaac would know better, seeing as he's in law school) based on other countries but not nearly as sue-happy as the media claims.

The reality of the world is this:

There are people.
Some of those people are wronged.
Some of those wronged people know they have been wronged.
Some of those people, knowing they have been wronged, have a legal claim.
Some of the people with a legal claim know that they have one.
Some of the people who know that they have a legal claim want to pursue it.
Some of the people who pursue it do so through the courts.
Some of the people who do so through the courts win.

At the end of the day, only a fraction of the people who are wronged get their day in court, or even get a settlement. If we are more litigious than other countries, it might be because we're more tortious, too.

Is it possible that bad cases get through? Sure it is. But in the face if contingency fee arrangements, sanctions, grievances, summary judgments, directed verdicts, JNOVs, there's plenty to make it so the plainly frivolous are not let in. And if it isn't plainly frivolous, then the courts exist to clarify what is and isn't.

Ask yourselves: what is it that leads you to believe that we're a sue-happy society?

[Encryptshun]

First off, I classifiy someone with a legitimate beef as something other than "frivilous". Second, the fact that the courts block many lawsuits from actually making to trial proves that "sue-happy" has more to do with the INTENT to litigate rather than the successful act of litigation.

All you have to do is to watch these blood-suckers advertise on TV:

"Got into too much debt? Call me. We'll get you through Chapter 11. Don't worry about paying it off, we'll get you out of it completely!"

"Got into trouble with the IRS? Call me. We'll get you a settlement and forgive your outstanding tax debt."

"Have you been injured? Call me. We'll get you set up for life. You'll never have to worry about bills again!"

"Do you have a structured settlement or annuity, but you need cash now? Call me. We'll get you a lump-sum in exchange for your structured settlement or annuity."

As our society continues to absolve itself of personal accountability, and as lawyers wanting to drum up business keep telling us that no matter what sort of jam we've gotten ourselves in to, the best way out is to call a lawyer, it's going to get worse.

[IBCoupe]

You do realize that all but one of those ads is inconsistent with a "sue-happy" society, right?

[Encryptshun]

Okay, the last one is, but I disagree about the other three. The message that keeps innundating the public is "Be irresponsible, our lawyers will help fix everything." This enables the cognitive leap that if lawyers can be used to remove accountability for behavior and/or mistakes, they can be used as a path to easy money.

[IBCoupe]

But they're not offering to do it by suing. They're not going to Court. They're all transactional, with, perhaps the exception of the IRS settlement, but I have to believe that it's more a matter of filing paperwork than causing additional costs of business.

What, exactly, is wrong with any of those ads? It seems like you're objecting to American values more than you are the legal system. You might have a point with some of it, but it has little to do with tort reform. Nothing proposed in any tort reform would address any of the ads you're pointing to, except the personal injury one.

[Encryptshun]

Hey, Australia's got a great example of what we're talking about. Maybe we ain't so bad after all.

http://www.myfoxdc.com/dpp/news/offbeat ... xdc-072611

[R/T Hemi]

What's your excuse for this one IB?

Woman gets drunk, drives on the wrong side of the highway, kills many people, including herself, then the drunk/dead woman's husband sues the owner of the car she drove and the state? I guess it's the state's fault that the dumb b!@$# got plastered and drove with kids in the car. And of course, the guy who owned the car and lost 3 kids, he's got to be at fault too. It's too bad this Darwin award candidate took innocent people with her.

http://www.usatoday.com/news/nation/201 ... oq6a7admxx

Frivolous or legitimate? More attorneys = more suits like this unless we have some viable tort reform.

Edit. After reflecting on this, it's clearly the state's fault. They needed a sign asking drivers to please not drive drunk on the wrong side of the road. And the car owner, clearly, he paid for the fuel in the car.

[srellim234]

You can file anything you want. I see nothing that indicates it will NOT be dismissed as frivolous. Give the legal process a chance to work and it probably will.

[R/T Hemi]

The fact that it even got filed points to a system that's broken and, once again, greed, not justice, motivating the tort industry.

I hope you're right and this case gets tossed out sooner than later.

[stebo0728]

But this is free America. If a dumb*ss plaintiff finds a dumb*ss lawyer to bring a dumb*ss suit to court, they have every right to do so. However, a few ballsy judges saying "ok dumb*ss plaintiff, everyone's legal fees belong to you, and dumb*ss lawyer, my chaimbers now please" might make the rest of the dumb*ss's think twice.

On another note, I've pondered whether we should shelter juries from information about the defendants financial status and ability to pay, and insurance coverage. The decision should be whether defendant is liable, not whether or not the defendant "just has the money to pay anyway" or "well it'll just be the insurance paying anyway, lets give the poor plaintiff something" type of decisions.

[IBCoupe]

The fact that it even got filed points to a system that's broken and, once again, greed, not justice, motivating the tort industry.

I hope you're right and this case gets tossed out sooner than later.

Edit by Moderator: Unnecessary personal attack edited and removed.

[IBCoupe]

On another note, I've pondered whether we should shelter juries from information about the defendants financial status and ability to pay, and insurance coverage. The decision should be whether defendant is liable, not whether or not the defendant "just has the money to pay anyway" or "well it'll just be the insurance paying anyway, lets give the poor plaintiff something" type of decisions.

I'm not sure they're shown that information, generally speaking. The plaintiff can recommend damages, as can the judge (and defendant I suppose), and they have access to the insurance coverage, for example. Im not in favor of shielding them because we must keep this in mind: we're not out to find the truth. We're out to fairly resolve disputes. To a certain extent, we want the financial limits of the defendant to be known so that we might just make it go away.

[IBCoupe]

What's your excuse for this one IB?

Woman gets drunk, drives on the wrong side of the highway, kills many people, including herself, then the drunk/dead woman's husband sues the owner of the car she drove and the state? I guess it's the state's fault that the dumb b!@$# got plastered and drove with kids in the car. And of course, the guy who owned the car and lost 3 kids, he's got to be at fault too.

1. Dad's got a ton of bills to pay now. He's suing the other car to get at insurance, because his is stiffing him. Also, assuming that the driver of the other car was actually alive at the time of the head-on collision, comparative negligence would say that they were partly responsible for the accident. Ms. Liebeck of the McDonald's case, for example, was assigned 20% of the blame.
2. Last summer there was a rash of wrong-way collisions and deaths up here, leading to an ongoing public debate in newspapers and other local media about the design and signage of our highway off-ramp.
3. There are safeguards in place to ensure that, if this case is truly meritless, it will fail.

Edit by Mod: Unnecessary personal attack edited and removed.

[srellim234]

The fact that it even got filed points to a system that's broken and, once again, greed, not justice, motivating the tort industry.

I hope you're right and this case gets tossed out sooner than later.

Your dependence on anectdotal evidence instead of hard numbers means the argument could be thrown back at you. Greed, not justice, motivates some in corporate boardrooms to take advantage of their workers and customers. Capitalism must be a failure because it allows that to happen.

Greed, not justice, motivates some to cheat on their spouses all over the world. The institution of marriage must be a total failure.

Greed, not justice, motivates a minority of people in every institution, set of laws, form of government, religion, etc. to take advantage. You can't stop 100% of those people 100% of the time. While it doesn't mean that some evolution of the process needs to always be taking place, major overhauls and condemning the entire process does not need to happen.

[IBCoupe]

The fact that it even got filed points to a system that's broken and, once again, greed, not justice, motivating the tort industry.

I hope you're right and this case gets tossed out sooner than later.

Edit by Moderator: Unnecessary personal attack edited and removed.

Here's the uninsulting bit:

So, we should be running it by you before we go on with any if our disputes?

Is that the solution? "No arguments may be brought to the legal dispute until a random assortment of people on the Internet agree that it has merit?"

I kinda prefer the other way. The way we do it.

"I'm gonna sue you!"
"Judge, this is silly."
"Hm. Yes it is. Dismissed."

[stebo0728]

"I'm gonna sue you!"
"Judge, this is silly."
"Hm. Yes it is. Dismissed."

I agree. But I would add:

"Defense Attorney: Your honor my client had to spend $x in defending this silly case, a cost they should be paid by the plaintiff for bringing suit"
"Judge: Agreed, plaintiff will pay $x to defendant as legal fee restitution"

[IBCoupe]

That frequently happens in those situations. I'm not sure if you meant to say as much, or if you were offering an improvement.

[stebo0728]

Does it happen as an occasional, or is it the standard?

How about when a person making 20k a year files suit against a Fortune 500 company, who's legal fees could be quite high? Whats the norm in that situation?

[Encryptshun]

In that case, the plaintiff either finds an attorney willing to assume all financial responsibility if there's not settlement or award. Or they find out how much it's going to cost and they drop the case. Terrorists win.

Welcome to the p0ker table.

[srellim234]

Or the plaintiff gets together with a bunch of other people with the same complaint to pool resources (Oh, right. The Supreme Court says you can't do that any more.)

[stebo0728]

Sounds nice, but IS that how it happens? Or does the case get thrown out and the "mega corporation" get stuck with the legal fees because the plaintiff cant pay anyway? They should fall on the plaintiff regardless of the fiscal status of the defendant. Maybe they do most of the time, I dont know, just stating how I think it SHOULD play out.

[IBCoupe]

The judge can limit it to reasonable attorney's fees. There was a case in Massachusetts just this month: a woman sued a town, won, and was awarded attorney's fees. Because she had intentionally delayed and drawn the case out and made a public stink through her lawyers, the judge limited the award accordingly.

[R/T Hemi]

1. Dad's got a ton of bills to pay now. He's suing the other car to get at insurance, because his is stiffing him. Also, assuming that the driver of the other car was actually alive at the time of the head-on collision, comparative negligence would say that they were partly responsible for the accident. Ms. Liebeck of the McDonald's case, for example, was assigned 20% of the blame.
2. Last summer there was a rash of wrong-way collisions and deaths up here, leading to an ongoing public debate in newspapers and other local media about the design and signage of our highway off-ramp.
3. There are safeguards in place to ensure that, if this case is truly meritless, it will fail.

Edit by Mod: Unnecessary personal attack edited and removed.

There is another problem with the tort system. A lawyer chooses to sue a driver who was driving in the proper lane, sober as a judge when hit by a drunk and stoned woman driving on the wrong side of the road, claiming contributory negligence, and you're telling me the system isn't broken?

Once again, some attorney in need of his next meal, chooses to sue such a law abiding citizen certainly paints lawyers in a pretty shade of greed, wouldn't you say? One would think there would be more recovering attorneys in the world.

And any dimwit that can't figure out that we drive on the right side of the road in the US needs to
A. Get new glasses,
B. be checked for Dementia,
C. Walk.

This suing the city/state/etc when some dumb@$$ tops off his stomach with several ozs of 100 proof and sucks a bong inside out and thereafter can't notice that ALL the other cars are going the wrong way, needs to have his/her drivers license sent to the bottom of the ocean. Permanently.

There may be an honest and ethical attorney somewhere, but given the chance, I'll bet that greed bug bites them hard and deep. My point is that with a 40% increase in attorneys over the next decade, this kind of crap will become the norm, not the exception.

[IBCoupe]

There is another problem with the tort system. A lawyer chooses to sue a driver who was driving in the proper lane, sober as a judge when hit by a drunk and stoned woman driving on the wrong side of the road, claiming contributory negligence, and you're telling me the system isn't broken?

Yes, I'm telling you that. A lawyer that doesn't explore all legal theories that might benefit his client is a lawyer that isn't doing his job. When you file your action, you file for every action that you might take, because you may not be afforded an opportunity to add a different theory later (and even if you are, that's more costly for everybody involved). If you're not suing all parties, you're not leaving your options open. That's not the system being broken, that's the system working as it should. There's another half of the docket, you know.

At this point, we haven't even gotten to discovery yet. The parties involved don't even have all the facts, but here you are: reigning down judgment. Thanks for your contribution, but you appear to really not have a good grasp on the subject.

chooses to sue such a law abiding citizen

One can be negligent without breaking the law.

certainly paints lawyers in a pretty shade of greed, wouldn't you say?

No. A lawyer's duty is to his or her client. Period. End. Full stop. Our system isn't one where a lawyer is asked to balance the interests of society, because we imagine that the other guy's lawyer is going to act just as zealously for his client. Your problem isn't with torts, it's with the American legal system entirely. I'd suggest you move to France if you want it to work differently.

And any dimwit that can't figure out that we drive on the right side of the road in the US needs to
A. Get new glasses,
B. be checked for Dementia,
C. Walk.

Well, thanks for that completely unworkable method of resolving disputes, and for completely absolving the State of any duty whatsoever. Hey, and thanks for being a complete a** while you're at it, too.

You're aware that on a divided highway or freeway, once you make the error of going up the wrong ramp, you're pretty much stuck going the wrong way, right?

This suing the city/state/etc when some dumb@$$ tops off his stomach with several ozs of 100 proof and sucks a bong inside out and thereafter can't notice that ALL the other cars are going the wrong way, needs to have his/her drivers license sent to the bottom of the ocean. Permanently.

Might be that they did notice, but only after it was a bit too late. You're pretty familiar with the facts in this case. Were you there?

There may be an honest and ethical attorney somewhere, but given the chance, I'll bet that greed bug bites them hard and deep. My point is that with a 40% increase in attorneys over the next decade, this kind of crap will become the norm, not the exception.

And my point is that they're not all personal injury attorneys. Why is it you keep ignoring that I keep saying this? What is wrong with you that prevents you from conversing honestly?

But hey, feel free to keep behaving like a d!ck. I'd prefer that you put it out there for everybody to see.

[IBCoupe]

The problem here is that people who have absolutely no understanding of the American legal system either think they do or are otherwise unaware that they don't. Their concepts of how it works and how it's meant to work aren't really lining up with the way it actually works and how it's actually meant to work, and so what they see doesn't really align with their sense of how "American justice" is pursued. This isn't particular to torts. This is particular to all American law. Civil. Criminal. Contract. Everything.

Hey, but most Americans don't understand how the Constitution works, either, so I don't begrudge them for not knowing how civil procedure works, too.