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March 21, 2005

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Comments

Ted

It's unfortunate that "frivolous" has two meanings, one legal and tremendously narrow, the other colloquial and considerably broader. It's not a word that should be used in political discourse, because it leads to the sorts of equivocations that one finds in this podcast, permitting the real issue to be dodged.

Matt

Ted makes me chuckle.

n

Websters New World: Frivolous - 1. Of little value; trivial 2. silly and light-minded; giddy
Blacks Pocket - lacking a legal basis or legal merit; not serious; not reasonably purposeful.

So what you are saying is that you think plaintiff's lawyers are laughing all the way to the bank?

People who die or are incapacitated due to others' actions or inactions probably find little in their suits to be silly (the dead ones especially :-D). Economic damages are usually limited to medical costs and expected lifetime earnings. It is very convenient then that CEO's who expect to make more over their life, can get redress, but less skilled workers or parents of children who are hurt not so much.

Ted

The Black's definition above is even broader than what is considered "frivolous" in the legal sense; most statutory definitions require more than a showing that a suit is without merit; some even go so far as to require a showing of bad faith. The Webster's definition does not correspond with what, say, George Bush is talking about when he criticizes frivolous lawsuits. I've discussed the question of frivolousness and "frivolous" in another forum.

Mike

Speaking of the frivolous lawsuit lie, see this summary of Gerry Spence's recent comments.

Matt

So Ted, in your definition of frivolous suit, or lawsuits of dubious merit, would Allstate suing Kraft claiming Toastette pastries are flammable and unreasonably dangerous qualify? Is that one of the cases George Bush is talking about?

Your link was most enlightening. I have now learned that pain and suffering is not a "real" damage. How good it is to know that such things as the trauma of missing an arm, or the loss of brain function, aren't "real".

Oh, and before I forget, do defense experts testify for free? I know the plaintiff's only get hired whores, but I didn't realize the defense experts all did their work pro bono. Nor did I realize that only plaintiff's lawyers were capable of misleading juries. You really shouldn't be so harsh on the helpless defense bar. It's not like they aren't trying - and then to have one of their own kick them in the teeth like that.

Again, most enlightening!

Ted

I just said that I try not to use the term "frivolous lawsuit" because it's inherently ambiguous.

I'm guessing your rhetorical question is meant to imply that I'm carrying water for the insurance industry; but I have criticized insurance company lawsuits over toaster pastries in the past, so your thesis is not only false, but directly contradicted by the evidence.

I didn't say pain and suffering were not real damage. I said awards of unmoored pain and suffering damages have adverse social consequences. John Edwards's cerebral palsy verdicts were not only unjust because they transferred millions of dollars of wealth on the basis of bogus science, but they also probably resulted in the deaths of dozens of North Carolina infants because of the effect they had on the number of obstetricians in the state and the availability of pre-natal care.

I've seen plaintiffs use bogus experts far more often than defendants, but I have no objection to covering cases where defendants go over the line. Feel free to mail me case cites as they happen for use in Overlawyered or Point of Law.

Matt

Ted,

My apologies on the pastries - didn't know you were up on it. I trust your proposal to cap toaster pastry damages will soon follow? The rest of your response was your usual solid gold, though!! Let me recap.

1. The phrase "adverse social consequences." A classic!! Means nothing or everything. Excellent choice.

2. John Edwards' cases are bogus. Never mind that your link doesn't cite a single person who has read a single record from those cases. We can just extrapolate that because many aren't caused by medical malpractice, John's weren't. That makes good sense.

3. North Carolinians are suffering? Why would John Edwards cause them to suffer? The number of med mal filings in NC has increased at a slower rate than the number of docs, payouts adjusted for inflation have declined, and the number of doctors in NC is increasing at a rate of 4% a year!! Including in the OB/GYN and Neurosurgery specialties. Yet you disregard all this and plow ahead!! Your moxie deserves an applaud!

Ted

1. "Adverse social consequences" means "adverse social consequences." I don't think it's ambiguous, and even if it somehow were, the next sentence provides clear context.

2. Your characterization of the argument against the Edwards verdicts is false.

3. Your argument here is the worst kind of sophistry. It's like saying that drunk driving can't possibly kill anyone because the number of traffic deaths has gone down.

Multi-million-dollar cerebral palsy awards raise malpractice insurance rates, which reduces availability of pre-natal care at the margin, which kills infants.

If you want to say it's worth the deaths of a few babies to make wealthy a handful of lawyers and a small percentage of parents who are victims of the random chance that results in cerebral palsy, that's one thing, but there's no question that such consequences are a real social cost of the failure to cap non-economic damages.

Matt

1. Ted, short of Jesus coming back to earth, there is not a thing in the world that one couldn't argue had "adverse social consequences." If my dog gets out and shits in the neighbors yard, there are "adverse social consequences."

2. If you say so about Edwards. To date, however, you've posted no information from anyone who actually reviewed a SINGLE record in any of his cases.

3. Ahh, the old strawman. Lawyers v. babies. Who doesn't love babies? Of course, the person the lawyer represents is never mentioned. Nor is the injury that person suffered. Focus on the babies. I'm starting to think you may be a Hillary Clinton fan with that tired "what about the children" ploy.

C'mon Ted, you're better than that. Most of the readers here don't just get their news from Katie Couric and Larry King. Give us some credit.

Tell me, which malpractice carrier raised its rates specifically in response to Edwards' verdicts? And if payouts are down in North Carolina, why would any insurer need to raise rates?

Ted

Matt, are you seriously contending that an insurer wouldn't change its actuarial predictions of payouts in response to several record-breaking verdicts and settlements achieved by Edwards? Really now.

I do believe I did specifically reference "the injury that person suffered," though I fail to see what the doctors who are paying for the injury had to do with it, and note that you have yet to identify a single thing that can be found in the "record in any of [Edwards's] cases" that obviates the scientific evidence. You seem to be trying to imitate the Monty Python Argument Clinic sketch, so you can have the final "No, it isn't" unless you have something substantive to say.

Matt

Again, Ted, put forth some evidence from those specific cases. Then your position that they were unjust will have some merit. Right now what you're saying is akin to arguing that most drunk drivers don't kill anyone, so any finding that one did kill one couldn't possibly be correct.

If the overall payouts remain flat or decline over a period of time, the occasional high payout should not justify the sharp increase in rates. Does a rash of defense verdicts cause rates to decline? Of course not.

Don't worry about responding, I'm just having a little fun with you.

Ted

Payouts weren't down in North Carolina. They were certainly higher in 1998, when Edwards stopped practicing, than they were when he started practicing, which is the relevant timeframe for purposes of our discussion.

I've stated repeatedly that I'm not aware of a single Edwards cerebral palsy case that was not based on the same false junk-science premise, so I'm not sure what you're complaining I'm omitting.

mythago

I don't mean to have anyone rushing outside to look for signs of the Apocalypse, but I agree with Ted--what lawyers mean by 'frivolous' is not what the average Joe means by that term. Any lawsuit filed against Joe, or people Joe likes, is frivolous; any lawsuit filed by Joe, or against people Joe dislikes, is meritorious.

Although isn't the dead-baby argument the same one raised in defense of the Ford Pinto? We make all kinds of decisions that we know will result in some deaths, etc. etc.

Matt

This is really my favorite:

"there's no question that such consequences are a real social cost of the failure to cap non-economic damages."

If an insurance company executive only gets the 5-series instead of the 7-series because damages weren't capped, the terrorists have already won.

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