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April 27, 2006

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» Frivolous lawsuits? Pfft! from Disarranging Mine
On Evan Shaeffer's Legal Underground, the always thought provoking Unnamed Associate defines a frivolous lawsuit.... I have no disagreement with that. But, I should say.... [Read More]

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Sophist

Ted Frank accuses you of sophistry, then links to his own suggestion that the ATLA should \"put its money where its mouth is\" by entering the business of medical malpractice insurance? That Ted... always good for a laugh.

Ted

I'll make the Overlawyered post in the comments, since that site is temporarily down.

1. Why is my pointing out that trial lawyers' actions show that they don't believe their own propaganda sophistry? ATLA has run insurance programs before. Not successfully, mind you. Once again, if you're going to blame insurance company price-gouging for the liability crisis, you have to show why entrepreneurs (which can include billionaire trial lawyers) aren't seeking out these profit opportunities by doing things better.

2. TUA writes:
Frivolous, by dictionary definition, means something unworthy of serious consideration.

This is true, but utterly orthogonal to the discussion, because we're talking about a political shorthand, rather than a dictionary definition. Again, basing your argument on an etymological redefinition of what your opponents are talking about is the logical fallacy called equivocation, and that semantic shift is appropriately identified as sophistry.

The dictionary definition of "Semite" means someone of Middle Eastern descent, but that doesn't mean someone can't be a Semite and anti-Semite at the same time; whatever the roots of the word "anti-Semite," it means something different than "one who is against Semites."

"Gay" used to mean "happy." Should Walter Olson and Dale Carpenter argue that people who oppose "gay marriage" do so because they oppose happy marriages? Of course not: anyone with familiarity with the issue would know that that's a mischaracterization of the debate.

The same is true with "frivolous" and "frivolous lawsuits."

The politicians who use the term "frivolous lawsuit" are discussing something other than the dictionary definition of "frivolous." One might reasonably complain about the ambiguity or the misuse of the term; I for one try to avoid the phrase "frivolous lawsuits" for this reason. But one may not reasonably pretend that the politicians are talking about something other than that they're talking about. The debate isn't over whether a certain type lawsuit is frivolous, but about the appropriate public policy to deal with a certain class of lawsuits for which the rhetorical shorthand is "frivolous," and you disregard that debate entirely once again.

3. If we are to believe that the billboards actually encourage jurors to award money randomly to plaintiffs, we have to also believe that both the Institute for Legal Reform (which paid for the billboards) and the trial lawyers complaining about the billboard are all simultaneously acting against their self-interest, and expending a lot of resources to do so. Not impossible, but highly unlikely.

4. TUA writes:
All of this talk about frivolous suits and huge awards convinces people that the system doesn't work, that lawyers are corrupt, and that so many lawsuits are a complete waste of time.

Well I, for one, believe the system isn't working, that corrupt lawyers aren't being policed adequately, and that many lawsuits are worse than a waste of time. So if the talk out there is convincing others of this, I fail to see why this is a bad thing. But I think the reason most Americans believe this is because there's plenty of evidence for it.

5. TUA writes:
If something is worth more than $25,000 to someone, though, how can we call it frivolous?

Oh, my. You don't need me to answer that, do you? In case you do, I point you to this $5.6 billion suit, which I think even ATLA can agree is frivolous in the narrowest of senses. Tyler v. Carter isn't the type of lawsuit reformers and trial lawyers are arguing about, but the fact that you posed the question you did just shows either a fundamental misunderstanding of the public policy debate or a fundamental unwillingness to discuss the real issues.

Matt

"But I think the reason most Americans believe this is because there's plenty of evidence for it."

Actually, there's not. There's anecdotes of bad verdicts. There are even some bad decisions by juries that appellate courts don't overturn. There are fictional emails. And there's plenty of propaganda put out by the likes of people like you on behalf of their clients. And you dominate the propaganda market, because by and large, most clients of plaintiff's lawyers really don't have the funds to organize large scale lobbying campaigns. Their lawsuits are mostly unique to them.

But the truth is, thousands, if not hundreds of thousands of people, get justice every day in every court in this country. What's even more clear from your own propaganda is that you don't even believe the system is broken. You don't want to change it other than to minimize the exposure of your clients. You're not really interested in capping damage awards in breach of contract actions, because your clients file those. Your sole goal is to reduce the exposure of your clients to the individual, by limiting his ability to pay his attorney, by throwing up procedural hurdles, and by limiting what he can recover.

Which is fine. That's the way our society works - you advocate for something legislatively, and if it isn't unconstitutional, you may well get it. But at least on a site read by lawyers, don't try and act like your goals are something they're not.

Hey, if being a litigant or an attorney in a frivolous personal injury lawsuit is such an easy way to wealth, why aren't more business people doing that? If only Kenneth Lay had figured out where the REAL easy money is!

Jeff

Because there are some things even Ken Lay won't do?

Ted

You don't want to change it other than to minimize the exposure of your clients.

I don't have any clients, so your statement is already falsified.

You're not really interested in capping damage awards in breach of contract actions, because your clients file those.

I hereby declare that I wish for noneconomic damages in contract actions to be capped at zero or at such amount as agreed to by the parties. I've regularly spoken out against breach-of-contract damages that exceed the agreed-upon amounts. Another falsified claim.

In fact, there's not a single true thing in your statement: lawyers regularly outspend reformers in lobbying campaigns (need I remind you of the ATLA president bragging about having the Senate under their control?), and that doesn't even include the free publicity from the media parroting bogus stories fed to them by the plaintiffs' bar.

But the truth is, thousands, if not hundreds of thousands of people, get justice every day in every court in this country.

And millions of people go through the day without being mugged, but it doesn't mean that crime isn't a problem. Millions of people are paying billions of dollars unnecessarily; tens of thousands have lost their jobs; hundreds have died and thousands more hospitalized as a direct result of the lack of liability reform.

Further comments, if any, will be at Overlawyered, because Matt has repeatedly demonstrated he's not interested in serious conversation. (Matt knows that the claim about "clients" is a lie, and he repeats it only to harass me and deter me from posting here.) Evan doesn't wish to moderate his comments to ensure the noise doesn't drive out the signal, and this is why I invariably regret wasting time on this website.

Matt

Clients/donors, what's the difference, eh Ted?

Aaron
Evan doesn't wish to moderate his comments to ensure the noise doesn't drive out the signal, and this is why I invariably regret wasting time on this website.
You mean Matt has a speck in his eye?
Stan

Ted,

Allow me to be the 10,000 person to say it; you are nothing short of a blow hard and a shill. You constantly harangue the masses with trumped up stories and half-truths. You advocate an end to any sort of lawsuit which you don't prefer, and then you threaten to sue me for what any ass would perceive as light-hearted humour. You make asinine assertions such as "I don't have any clients," and expect that people will buy into that sort of legalistic sophistry because those clients are just "sponsors" or "contributors." Amazingly, you then turn around and berate others for employing that same sort of legalistic sophistry. Finally, when all else fails, you resort to pathetic, personal attacks. In fact, it is plain that your favorite debating tactic is to shout down your opponent in an effort to deflect legitimate criticisms of your bizarre worldview. Unfortunately, you have found an institution which has concluded that it makes sense to pay you for this sort of behavior and we are all poorer for it.

mobar

Ted - UA is guilty of sophistry because she's using the actual meaning of "frivolous" rather than the tort reformers' incorrect meaning of frivolous? Is she not complaining about the misuse of the term? The entire point of complaining about "frivolous lawsuits" is to disguise what is actually being complained about. When a layman hears the term "frivolous" they don't think it's a "rhetorical shorthand," they are left with the impression that meritless lawsuits frequently go to a jury and are awarded huge sums. Because that is the impression the tort reformers are trying to create.

Your other language examples are silly. Are you arguing that people began using the term "gay" to mean homosexual in an attempt to redefine happiness to mean gay? Or are you seriously denying that tort reformers use the term "frivolous" to redefine that word to mean "any lawsuit I disapprove of for a variety of reasons I'd rather not specify so let's just all accept that I'm right and pretend that the suit is not worthy of serious consideration"? Admittedly, the latter redefinition is quite wordy, so I can understand why the reformers go for the "shorthand." But it isn't really a shorthand, it's a misuse of the word. And it isn't particularly ambiguous, it's just a lie.

U.A.

1. I like point-by-point, it makes it clear what I'm addressing, so here's my response to Ted.

2. Thanks, mobar, I am complaining about the misuse of the term "frivolous," and I think it is a serious problem. Quite the opposite of trying to pretend that the politicians and tort reformers who use the word "frivolous" aren't giving it a particular (wrong) definition: I am addressing why I think that's a problem. There are serious problems in the legal system, and I don't believe that they are being addressed by the overhyped rhetoric. That rhetoric includes the tasteless billboard which started this discussion. The overheated imagery is designed to play on emotion rather than win through convincing people with logic.

Call me stupid, but I can't be the only one who read with alarm the discussions about the "litigation epidemic" and came away with the mistaken impression that there was a rash of nonsense cases going to juries (despite the systemic safeguards) and ending in ridiculous awards that had nothing to do with the merits of the claims; that was what I thought was meant by the problem of "frivolous" lawsuits. If I, a lawyer-in-training then, and now a trial lawyer myself, believed all the hype, surely the average layman is just as susceptible?

So, in fact, what Ted characterized as my "etymological redefinition" is not orthogonal it all - it's precisely what I'm talking about. (And, ironically, I'm advocating a return to the original definition; if that's redefinition I guess that's okay.)

3. Okay, I know the billboard is primarily aimed at voters, but guess what - jury pools in some jurisdictions are known as the "motor-voter" pool, and one half of that name is "voter."

4. That's just where we'll have to agree to disagree - I think the system works fundamentally, but that there are always improvements which can be made. The theory behind the jury trial & adversarial system is just as sound as it ever was, and that's just my opinion vs. your opinion.

5. Actually, yes I do.

mythago

and this is why I invariably regret wasting time on this website

Yet he keeps 'wasting time' here, then departing (temporarily) in a huff, tossing off an exit line about how he's, like, totally over this blog as he goes.

Usually it's right after someone's caught him in a little puffery, like claiming ATLA thinks it controls the Senate (if only Bill Frist knew!), or that thousands of people die as a direct result of failure to enact his employer's desired changes in the legal system. That's when he drops the sorrowful-but-reasonable pretense and goes straight into an angry fit.

Ted

1) Mythago, google "Fred Baron 'all but running the Senate'" some time, and then come back and apologize if you have any honesty. I don't make up stuff -- I don't need to, because the reality is bad enough. If you have an alternative explanation for why dozens of babies each year die from Group B Strep than the fact that junk-science lawsuits have driven the vaccine from the market, I'd like to hear it.

2) The difference between clients and donors is that one has an ethical and fiduciary duty to the former, and no duty to the latter. But Matt and Stan know this--and if they don't, I fear for their clients. Some of AEI's donors support the Specter-Leahy asbestos bill, and some oppose it, but that doesn't stop me from speaking out on it. AEI doesn't try to censor me or inspect my writings to ensure they don't offend donors or potential donors, and the first time they do is the day I quit and take a higher-paying job.

3) Stan is projecting: his entire strategy, and the strategy of many commenters on this site, has been to shout me down with insults, rather than address anything I actually say. He also knows that I never threatened to sue him. Stan has yet to say anything substantive about my writings over the course of dozens of postings and comments on me.

4) UA and mobar, I don't like the use of the ambiguous term "frivolous", and have spoken out against it years before you have, precisely because it permits people to attack a strawman, rather than the very real issues that you continue not to address. Even if politicians only used "frivolous" in the narrow technical sense preferred by lawyers rather than the colloquial sense understood by the vast majority of the American population, it wouldn't make the problem go away, it would just rename it. (On what basis does mobar contend that the "actual" definition of frivolous is that used by a subset of the people on one side of the debate trying to confuse the issue? In any event, UA isn't even using that definition, because she seeks to exclude technically frivolous cases when the damages demand is large enough, such as Tyler v. Carter, from the definition.) That UA continues to pretend that the ILR is talking about something different than they are is either sophistry or obliviousness.

5) UA: "there was a rash of nonsense cases going to juries (despite the systemic safeguards) and ending in ridiculous awards that had nothing to do with the merits of the claims." There is a rash of nonsense cases going to juries and ending in ridiculous awards that have nothing to do with the merits of the claims. I refer you to the Vioxx cases. Or read Overlawyered some time: I found the verdicts against Ford in cases involving sleeping drivers especially interesting. Several billion dollars in asbestos settlements have been paid out in Madison County precisely because defendants decided it's not worth the risk to subject corporate assets and personnel to the travesty that substituted for justice in that jurisdiction.

Evan

Ted: Why should Mythago apologize to you? Your comment was to this effect: "need I remind you of the ATLA president bragging about having the Senate under their control?" After Mythago objected to your statement, you said she should google "Fred Baron." Surely you know he's not the ATLA president. He's a past ATLA president and his comment about the Senate was made in 2002, after his presidency had ended. So the comment wasn't at all what you implied in your statement.

I'll make it more plain. The current president of ATLA is Kenneth M. Suggs. Despite your comment about "the ATLA president bragging about having the Senate under their control", the present ATLA president--the one your statement seemed to be about--has never made such a brag. Moreover, making your claim even more incorrect, no one speaking on behalf of ATLA as president has ever made such a statement, since Baron's statement came after he was the ATLA president.

If you were writing about a past ATLA president making a comment about a past Senate after his ATLA presidency had ended, you should have been more clear. At the very least, you can't blame readers for misunderstanding.

Even if you'd gotten the context right, however, your statement would still be wrong. If you read the articles that come up in your own google search, you'll see that Baron wasn't bragging. He was making a joke at a seminar to a friendly crowd. (Cf. George Bush, "What we have here are the haves and the have mores. Some people call them the elite, but I call them my base.")

Let's just get right to the point: do you really think ATLA or the plaintiffs' bar is running the Senate? Obviously, I'm speaking about 2006.

Ted

My statement was accurate as I made it.

Under the current supermajoritarian rules of the Senate, ATLA controls enough votes in the Senate to block any legislation they wish to block, and has exercised that power. I fully expect the med-mal reform bill, even in its watered-down guise, to be filibustered next week.

Walter Olson has previously demonstrated that ATLA is a more important constituency to the minority party leadership than, say, pro-choice voters.

Supremacy Claus

Cult criminals should take it easy on Ted. He is a rare example of someone with higher awareness. He is still a cult drone, just with a little awareness, a hint of a clue.

Lawyer control legislation is needed with the following effects.

A frivolous lawsuits should be defined as a losing lawsuit that contained a tortiously negligent element, anywhere in the claim from formation of client-lawyer relationship to closing statement. Obviously, the negligent lawyer should have to make the lawsuit abuse victim whole, with money damages, and with exemplary damages if malice or knowledge can be proven with a preponderance of the evidence.

However, the failure of the cult criminal on the bench to stop this claim at the earliest point within the standard of due care of the prudent judge, should be deterred by compensating the victim of lawsuit abuse from the judge's personal insurance policy. Because of the supervisory relationship of the government entity and of the administrative judge, those parties should also have to compensate the victim of lawsuit abuse, by the same standards. If negligent hiring or negligent entrustment of the case to an unqualified judge can be shown, those should be deterred with a money damage awarded to the lawsuit abuse victim. No one would file a frivolous lawsuit against the judge in retaliation because 1) the winner is filing the lawsuit 2) it is an intentional tort not covered by insurance and betting all the personal assets of the lawyer 3) the loss of a claim against a judge should trigger a screening process by 2 judges in all future claims made against judges, with their decision being final.

If the not guilty verdict rate is higher than that in the criminal law in the same jurisdiction or that in civil verdicts in surrounding venues, then the entire class of innocent victims of lawsuit abuse victims should be compensated by the class of tortious, negligent lawyers and judges. Any campaign contribution to the election campaign of a judge is knowledge per se for the lawyer and the judge. Recusal of the judge who has received any consideration from the lawyer should be encouraged with exemplary damages. If intelligent, the lawyer should only donate to the judges he wants to force into recusal, for a safe harbor from the malice element.

Lawyers biased in favor of maintaining rent. Nothing they say has the slightest validity that does not come from the barrel of the gun of Army Airborne. The lawyer controls 99% of government decisions. Until these lawyer control laws are passed, it is just lawyers running their cons on the unaware public.

stan

"3) Stan is projecting: his entire strategy, and the strategy of many commenters on this site, has been to shout me down with insults, rather than address anything I actually say. He also knows that I never threatened to sue him"

Good answer! Blatant lies and all!

It is such a good answer I would suggest marketing it to the masses, they are stup ... oh, wait.....

Your schtick works on people in public housing Ted. Give the rest of us a little credit.

mobar

Ted- there's nothing ambiguous about the term "frivolous." It has a specific meaning that the average person has no trouble discerning. If you were willing to disavow its dishonest use by your fellow travelers, that would lend you and your arguments credibility. Instead, you implicitly endorse the significant expansion of the term's meaning by pretending that the dictionary, commonly understood, meaning is somehow a narrow technical use retained only as jargon. You are wrong, Ted. In the colloquial sense, it still means "not worthy of serious consideration."

"On what basis does mobar contend that the "actual" definition of frivolous is that used by a subset of the people on one side of the debate trying to confuse the issue?"

Dear Lord, man... you can't even win this on a prescriptivist vs. descriptivist basis. It has one meaning, except for within your particular (small, but wealthy and/or loud) subset. I can't even honestly accuse your group of trying to "redefine" it, because they've offered no honest substitute definition. The entire argument depends on people retaining the traditional definition and just, well... you and yours lying about the class of claims to which it applies and counting on people not to notice the details.

I've witnessed you attempt quite a few slight of hand moves, but this is the most grand.

mobar

Stan- Perhaps there's an inside joke in there that I'm missing, but I'm going to give the people in public housing more credit and bet that they'd be far less indulgent of Ted's song and dance routine than the folks around here.

mythago

My statement was accurate as I made it.

No, Ted, it wasn't. It was a deliberate and very old rhetorical trick: make a statement implying one thing, and when it's pointed out the statement is inaccurate, angrily deny you were wrong and insist that, really, the larger truth is all that matters. I'm sure you read it in Capaldi, if not Cicero.

"[N]eed I remind you of the ATLA president bragging about having the Senate under their control?" is quite clearly intended to mislead the reader into believing that right now, the person at the helm of ATLA seriously and arrogantly said that ATLA controls the Senate. When Evan pointed out the many errors in your statement, you insisted that you were nonetheless right because ATLA is a powerful lobby--they're even MORE powerful than the ABORTION lobby! Kinda loses some of the impact there, don't you think?

It's a shame, Ted, because you've got decent rhetorical skills, but you constantly let your temper get the best of you. Perhaps that's why, no matter how may times you insult Evan or insist Legal Underground is a waste of your time, you can't stay away.

Supremacy Claus

The door to the courthouse is closed for the victim of lawsuit abuse, of lawyer malpractice and negligence. The common law doctrine of no duty to adverse third parties is lawless since many duties are enumerated in many Rules. Aside from the violation of these federal and state Rules, the denial of access to the courthouse of the victim of the lawyer is unconstitutional, in violation of the 5th, 13th, and 14th Amendments.

Perhaps, that doctrine can be justified. I have never heard of any valid objection to lawyer accountability legislation.

Because government is the lawyer, all governmental immunities should also be outlawed. Let the Supreme Court carry liability insurance, just like everyone else. If they make a negligent decision and someone suffers an injury, for example, all fetuses aborted in the 3rd Trimester in violation of the 5th Amendment, let them compensated the class of victims of court lawlessness with insurance.

The sole result of immunity is growth. The railroad had it, grew. The Internet has it, is growing. The lawyer has it. Income and number of members of the profession is growing. The distinction between the first 2 industries and the legal profession is that the industries are profit seekers. The lawyer profession is a rent seeker. One makes a profit by taking a resource, adding value and having someone agree value was added equal to the price and the profit, the sincerest form of valuation. One seeks the rent by taking people's money at the point of the gun held by Army Airborne if necessary. No value is added other than relief from fear and violence.


mobar

Times like these, I wish I had access to all those secret ATLA mailing lists.

Stan

For the record, the commentor using the moniker "stan" with a lowercase "s," was not me.

Further, I agree with mobar, I doubt those in public housing would buy into Ted's blather. I think Ted really aims to preach to his own choir, i.e., nuts like Supremacy clause and other pseudo pundits who think they are smarter than the average bear, simply because they read USA Today.

In the end, Ted is simply spouting someone's party line for profit and fun. I find it a little disgraceful that he blatantly lies, ("He also knows that I never threatened to sue him"); ("My statement was accurate as I made it") in order to bolster his arguments. Its a lot like sitting through an Amway sales pitch.

Mythago, you are quite bright and more than a little clever. I mean that with all sincerity.

Supremacy Claus

Stan: I have no doubt that you have 50 IQ points on me. You law education devastated it all. You are a victim of cult indoctrination, so good, you still don't realize it. It has made you stupid and treasonous to our besieged nation, because your loyalty is solely to cult rent seeking interest above all else, even your own life.

Aside from calling me unfunny, unclever names, and misspelling, do you have anything lawyerly to reply to my specific problems with your land piracy profession? I have pointed out the lawlessness of your professions's self-dealt immunity, and unjust conduct. How is it legally justified?

Never mind policy argument. Hopeless. That would be like arguing creationism with a fundamentalist.

However, try your hand at some case law, some statutes, with a civilian. You should have no trouble dispatching me in your own field of expertise. Show me where your self-dealt immunity is lawful.

Ted

You are wrong, Ted. In the colloquial sense, it still means "not worthy of serious consideration."

And that's how politicians and reformers use it. Reform opponents use it much more narrowly: a Democratic bill on "frivolous litigation" defined the term to include only objectively baseless lawsuits brought in bad faith. UA, in her post above, would define it even more narrowly to exclude lawsuits where the plaintiff asks for a lot of money, no matter how bad faith or unmeritorious the claim, and claims not to understand why that's a pointless definition.

The McDonald's coffee lawsuit was not worthy of serious consideration, but it's not "frivolous" under the narrow legal definition because one court out of fifteen erroneously recognized the merits of the claim. The problem is that the legal system finds far too much worthy of serious consideration, and then, after giving serious consideration to that which does not merit serious consideration, proceeds to announce that the litigation isn't frivolous because they gave it serious consideration.

Even within the legal community, I don't know how you can say "frivolous" isn't ambiguous when different jurisdictions define it differently.

Evan made one point and asked one question, and Mythago deliberately misrepresents my answer to Evan's question (Do I think ATLA controls the Senate?) as my response to the point (Was my characterization of Baron's remark accurate?). Why won't Mythago debate what I actually say? Readers can decide for themselves.

Stan is projecting once again with his false accusation of "blatanty lied." Since I specifically said I would not sue Stan in the only statement involving Stan and litigation I ever made, Stan is lying when he repeats the claim that I threatened to sue him. Readers can decide for themselves why Stan feels his arguments are so weak that he has to repeat lies and try to shout me down with insults instead of debating me on the merits.

Or, better yet, just go to Overlawyered, where I don't let people like Stan and Supremacy Claus troll the discussion with off-topic comments and insults.

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