Trial lawyers need to be reigned-in

[Professor]

So, I've been sued for an incident that happened on a racetrack, during a race. Predictably, he's sued the track and myself. In discussions with my and the track's lawyers, we are 99.9% certain that he has no chance in court. Yet, I've already racked up over $10k in legal fees, and we're discussing a settlement that would cost me another $5000 (FYI, $5000 is cheaper than even paying my lawyers to take depositions, much less a full trial). So, I'm looking at paying $15k for something that was, in fact, part of racing (or perhaps even his fault!).

But, this thread isn't about the incident. It's about frivolous lawsuits. I know that the big idea always floated is "loser pays". And, so far as I've ever seen, that idea goes exactly nowhere. And, with some good reason. In a "loser pays" system, each party is betting the farm that they will win. The lawyers rack up massive fees with no one paying them a dime (or perhaps paying only their lawyer as costs are incurred). Then, at the end, the losing party is hit with a huge bill for the other side's lawyer. It would result in far more bankruptcies, uncollected bills, etc.

I think there's a better way. Here in Louisiana, we have a law stating that lobbyists may not lobby for a percentage of whatever money they win in the legislature. In other words, if a lobbyist helps to pass a law that results in a $10m contract/grant/etc. for his client, he cannot get 5% of that amount. He much charge an hourly rate, and can only be paid that amount. In short, there are no "contingency fees" in lobbying.

Why not do the same for civil suits? If someone wants to hire a lawyer and sue someone else, that lawyer would not be able to charge a contingency fee, and would instead have to bill his client in the same manner (though the rates could be different) as the defendant will pay his own lawyer.

[Dylan]

i see your point but you would essentially be precluding a lot of poor people access to civil litigation.

contingency fees result in scheisty lawyers scrounging up shit claims but they solved for the above well. there are other ways to solve for the (very real) problem you describe i think.

[eynon81]

first....you hate Plaintiffs lawyers, lots of them are ex-DAs and yes most are scum. (defense bar master-race here)

if you nix contingency fees you're basically excluding 80-90% of Americans from ever being able to file major civil-action, rightly or wrongly.


also the thing you're over-looking about "loser pays" is it will discourage trial lawyers from even taking frivolous suits to begin with as it's decreases the chances they'll ever see any money.

a third option Non's been toying with is the idea of a magistrate gate-keeper for civil actions. basically 2 parties can take their claims to a court of first impression, no lawyers, and the magistrate can weigh in. the frivolous suits will be labeled as such and later courts will take those findings into consideration.

[Dylan]

haha lawyers think alike don't we?

[NAB]

[Professor]

I'm not so sure that you would "prevent" a lot of poor people from being able to file suit. And, let's face it, when talking about being able to afford a lawsuit, the "poor" pretty much includes anyone in the bottom 90% of household income (more than $150k) (just as Non said). How do I arrive at that number? Well, based on my example of costing me $15k, it's tough to forgo 10% of your annual before-tax income (or 13-14% after-income-tax dollars). So, we're really talking that 90% of the population would have to really consider if it's worth it to file suit.

Furthermore, plaintiff's lawyers would always be able to counsel their potential clients. They would be able to say "Looks like you've got a slam dunk of a case. I'd say 95% probability of a win. And, I will be glad to defer your bill until the outcome of the case, when there is a 95% probability that you'll be able to pay me out of your winnings. Of course, you will still owe me money if that 5% chance of loss comes about."

But, I understand that it's somewhat drastic. How about a trial-run? For 5 years, you only allow 50% of lawyer's fees to come from contingency, and 50% must still be paid by the client.

[Professor]

You know, we could always take the Obama approach to this.

Being able to file civil lawsuits is a right enjoyed by every American citizen, right? And, most people are unable to afford to pay for a lawyer on their own, right?

Why not just mandate that everyone have a lawyer on retainer, paid for by employers and/or the Federal government?

[eynon81]

[eynon81]

[eynon81]