T Nation

To The Lawyers and Law Students

I’ve been thinking a LOT lately about the litiginous nature of our Country. I will often see what “should” be in my mind a tragic case on the news, that should garner my sympathy…but instead I find myself saying (regrettably) “Okay…who’s gotta pay, and pay dearly, for this one…”
This is the question:
To sue…is it a “right”, a “previlege” or what exactly is it It’s gotten to the point where it almost seems like a Constitutional “Right”.
Help me out, guys…Law “101”…

Read Scott Turow’s L101 to find out how this happened. (I think that’s the title - if not, it’s something pretty similar.) A good idea taken completely out of context and pushed to the point that it becomes bad.

Char: I’m on it!

Is that a Textbook or another type of book?


Mufasa –

It's not a big mystery why this is going on actually. Combine the whole trend of people refusing to take any responsibility for themselves with the class-warfare idea of punishing big, rich corporations (irrespective of whether their at fault or not), and add the fact that the plaintiff's bar has an economic incentive to file as many cases as possible on contingency fee in hopes of settling some and hitting a home run with stupid juries every once and awhile, and you have the basis for our current climate.

I'm a huge proponent of enacting some sort of tort reform to make it easier to weed out the worthless cases. However, until they take civil cases away from juries, or until juries quit acting out of some sort of embedded class envy and corporate bias against deep pockets, there will be problems in this area. Could the verdict against McDonlad's in the infamous hot coffee case or against BMW for hundreds of millions of dollars for delivering a car they had repainted to cover a scratch inflicted during the shipping process have arisen from anything but a desire to punish corporations?

Also, think about the people who serve on juries. Most educated people with things going on try mightily to avoid jury duty. Lawyers use peremptory challenges to eliminate people who look like they might know the subject matter or the law. It's completely ridiculous to have complicated civil cases decided by the segment of society least likely to be able to understand the issues in question.

As for the right to file suit, I couldn't point you to a specific law or provision of the Constitution, but I have always understood that it was a prerogative of citizenship to avail oneself of the court system. Federal courts have specific jurisdiction and only take certain controversies, but state courts can take just about any case over which they have some sort of jurisdiction (a pretty lax standard) and that aren't exclusively in the jurisdiction of the US Supreme Court.

The function of the civil courts where these sorts of disputes arise is basically to arbitrate disputes over money or actions between private parties, or between private parties and the government acting in a civil enforcement capacity. As such, I guess the only real requirement to use the courts for dispute resolution is that you have an actual case or controversy (there is a whole docrtine of "standing" which is too complicated to get into here), and that you file the claim in the court of proper jurisdiction.

Mufasa - it’s a regular paperback (the first one he wrote). If you look in any of his current best-sellers, it should be listed inside the cover.
BB - good points, especially the one about smart/educated people not serving on jury duty. Reminds me of China’s one-child policy, in an odd way… They wanted to cut the population for several very good reasons, so they came up with the policy, promulgated it relentlessly with all sorts of statistics and so on, and enforced it as ruthlessly as possible.
The end result? A dumbing down of the population, because all of the smarter/more highly educated urbanites were exposed to the campaign, understood the reasons for it, and were in a location where they would be found out if they violated it. But the idiots and the countryside people understood the reasons less well (or not at all) and could get away with having more babies than was allowed because it proved physically impossible to check everyone out in the country.
Can you say, “backfire”?

I completly agree here. I’m going into health law next year so I can protect MD’s from sue happy fucks, and the docs can get back to helping people and stop worrying.

Wow! You guys are GREAT! I am beginning to understand a little more, just from these few responses.

Question for BostonBarrister:

Am I “oversensitive” to the litigation/suing “crisis” of America? In other words, is it not really a problem? OR, do we have a system that needs some reform? What do you think some of those reforms should be?

Again…THANKS, guys!


Don’t get me started on this shit! I could go on for days. Even though my company has never used asbestos, I have been named in 7 asbestos law suits that I have to spend money on to defend because other copanies used to use asbestos on their products. WTF? We need to adopt the English system whereby a plaintiff who loses must pay the defendant’s legal costs. We are totally out of control due, mostly, to a small bunch of greedy assholes who care only about extracting money from the rest of us. Unfortunately, the ABA will not take the stand it needs to to correct the situation. Until that happens, I have to raise my prices to you, the consumer, to pay to fend off these miscreants. Send a thank you card to the ABA.

I agree with mufasa on the tort reform thing, and thanks to Uncle Paulie for going to bat for the Docs.

My mother was a Pediatrician for a hospital in an economically challenged area and she was routinely sued 4-5 times a year toward the end of her years of practice (1980’s to the Mid 90’s). While I was in highschool, I spent a lot of time with her at the kitchen table. I would study while she prepared for a trial. Wasn’t bad enough that she had to work a full day (and make quota - How can a good doctor see 30 patients a day, give them personal attention AND make hospital rounds?!) and leave the house at all hours of the night to respond to emergencies - then pile onto that trial preparation.

The worst part of it was that the trials were about 90% Bull. With most of the alleged problems actually stemming from the lousy parents inability remember to give the child the medication, refuse to come back for a followup visit, or not even GET the prescription - OUT OF LAZINESS cause the welfare program paid for the drugs. Yet all of these people were smart enough to get an attorney to sue Mom, and the attorney was always smart enough to settle the case out of court. Start the suit asking for 100,000 and then settle out of court for about 20,000, and the patients would still come back to my Mom for their next visit like they had done nothing wrong. Tort reform needs to include jail time for those (and their attorneys) that bring these suits to court if they lose the case. Maybe then, since there would be a reward of sorts for the insurance companies that won their defense casses against these people, some of them would stop settling out of court.

Not that it’s that simple, but something needs to be done to prevent people from benefitting because of their stupidity.

Sorry about the rant, but this one hits close to home.

Bostonbarrister covered it pretty well but I would also like to add one thing. The Bar has done a terrible job controlling the number of new lawyers. Since there are so many attorneys and they need to make a living more frivilous suits are filed in the hopes of settling quickly.

Just to clarify: the Scott Turow book is titled, One-L. It’s about his first year of law school at Harvard. It is a very interesting read.

To BostonBarrister: you said a mouthful! That’s why I’m in the criminal field–prosecuting no less. The thought of every litigious shyster going for the contingency fee made me bonkers even in law school. Little did I know the quality of juror I could expect. Just thinking about the system we live with is enough to get another five reps out at lunchtime!

To Mustafa: As BostonBarrister mentioned, I don’t believe you’ll find a specific section of the Constitution that guarantees access to the court system. This is inherantly guaranteed, much as you can call your Congressman or gain access to pretty darned near any other branch of the government. Is it being abused? Just look around you; read the daily paper. No, you aren’t being hyper-sensitive. Most people of good will and common sense realize that our system is out of control.

Kudos to the person who posted in support of the British system. I agree (just don’t tell the ABA, or they might take away my club card and whack me on the knuckles).

Avoids pegged it: the British system is the way to go.

Trialdog, thanks for the correction. I couldn’t remember to save my life…

Interesting statistic: In California in 1990, your chances were one in four of getting sued if you made more than $100,000 per year.

Just checking back in here – Avoids pretty much nailed my position on tort reform. I think the British system is far better. Also, it is necessary that we overhaul the rules for class action suits, which allow lawyers to make up some “class” or potentially harmed victims and then extract massive settlements from companies – and almost none of the money ever makes it to those supposed victims.

Also, it’s really the Trial Lawyers Association that blocks most attempts at tort reform (although the ABA is pretty worthless too).

The TLA gives all sorts of money to politicians, the majority of it going to Democrats. There have been various efforts to curb abuses in securities suits, asbestos suits, and various other plaintiff suits, but they are constantly sandbagged by politicians whom the TLA has basically purchased.

Basically, the plaintiffs bar has an industry going: they find productive industries and attempt to bleed them dry, to use the tort system as a massive income redistribution program (from productive companies/shareholders to bloodsucking plaintiff’s lawyers). We need reform, and we need it yesterday. 'Nuff said. Peace. Out.

First, let me point out that I am NOT a student of the law. Second, I am NOT a coffee drinker. Third, I’ve never sued anyone (or any corporation for that matter).

That said, I would like to interject that the “McDonalds hot coffee case” that people often point to as the height of frivolous lawsuits was actually more complicated than some clumsy woman dumping hot coffee in her lap. McD’s knew that their coffee was capable of scalding (i.e., creating 3rd degree burns) people, but they insisted on keeping their coffee at a temperature in excess of the “typical” cup of coffee in the face of sveral complaints.
Moreover, my understanding of the settlement of this case was not released to the public. So the idea of this clutzy woman “winning” millions from McD’s is just not accurate.

At this point, I am more interested in understanding how/why this myth has been perpetuated, than trying to determine if we as a society are more (or less) litigious than before.

I don’t think it takes a billion dollar government study to determine that we are a society that is more litigous now than before. And, not all attorneys are shysters. My two best friends are both lawyers but, like Boston Barrister, they feel that reform is necessary.

The problem with the McDonalds lawsuit is that they should be able to serve their coffee at any temperature that they want since this is a free country. Especially since the dangers of something HOT are known to everybody from the age of 2 and up. There is no hidden danger here that the consumer isn’t aware of since you know that coffee is hot and something hot can burn you. The reason that she got hurt is because she was clumsy and dropped the coffee in her lap. The reason that she thought she should sue McDonalds is that she refused to take responsibility for her own actions.

Now I don’t mean to be insensitive here, I really do feel bad that this lady burned herself in the kooch, but c’mon does the insurance company really have to bear the brunt of this?

I am not sure that the country is any more litigious now than it has been in the past. It may seem that way due to “instant” 24-hour news stations. But, by the same token, it seemed like there was a rash of child abductions based on media reports when in fact such crime had decreased. Now, the country may indeed be more litigious than in years past, but don’t base that on “feeling” but rather hard numbers. “Feeling” on matters like this is often based on the news, not on actual figures. Personally, I think that a handful of truly frivilous lawsuits make the headlines either by merely being filed (whether or not they even survive the motion to dismiss or summary judgment stage) or because of some crazy verdict (which is often reduced by the judge, but this isn’t nearly as interesting to report) and that by doing so, it gives the impression that the system is really far out of whack when it is not. This is not to say that there are not problems with the system, there are. But they are not anywhere near what “the sky is falling” crowd touts them to be.

Trust me Matt: We are definitely more litigious now than before, and the numbers bear in out in terms of the number and type of suits that are filed, as well as the size of the awards. Unfortunately, while I’ve read reports of the studies in the legal periodicals, I didn’t save any, so I can’t point you toward exact numbers. However, suits filed are up, settlements are up (which a lot of the time is just companies paying for things to go away when the courts won’t dismiss them outright, because it’s more expensive to fight even if you’re in the right) and verdicts gone up.

Of course, these things are correlated; corporations are more likely to settle rather than risk a huge verdict even if they think they are in the right, especially when they don’t trust the juries. The asbestos bar and the plaintiff’s securities bar are notorious for trying to extort large settlements from companies based on flimsy allegations they know will lead to expensive fact finding and litigation, even if the company prevails.

It is ridiculous, and while the sky is not falling, there definitely needs to be reform along the lines discussed above.

I am probably the newest member of the bar here (November '02)! Don’t worry, I am an IP attorney (any litigation I am involved in tends to be corporation vs corporation). Before I say what I have to say, I want to point out that I am a libertarian with some conservative tendencies. I think the British tort system does provide some good guidance. However, and I really do feel sick saying this because it does sound so liberal (I just want to puke), but does anyone think that a loser pays system will scare poor people away from bringing a case? I am sure any of the other attorneys here can tell you that there is no such thing as a slam dunk case that goes to trial (well, 99.999% of the sure fire winnners don’t go to trial). If you tell someone who is poor that there is a chance you will lose (because no matter what the case, that is always a possibility), and if you do lose, you have to pay the other sides attorney fees, it seems to me this may deter some poor people from bringing a suit, even if they may have a valid claim. This does not seem like a good idea to me.

Thank you both for your thoughtful comments about physicians. You are both good people who realize that physicians are the good guys. The same people who sue physicians complain about the cost of health care. Law should have next to no role in the daily practice of medicine. There should be well-defined laws that state which medical mistakes are punishable. They need to be only the most aggregious errors. One cannot expect to “sue out” mistakes. More suits=higher health care costs=decreased reimbursement for physicians=fewer qualified applicants=more mistakes=more suits.
Thank you Uncle Pauli for doing the right thing. You have my respect. Good luck.