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I think we've discussed this type of reform in here before. Specific details aside, I'm generally supportive of a loser liable type system. I think it would serve to help rid the system of completely frivolous lawsuits. My concern would be (and this is where the details become important) a reform written in such a manner that legitmate cases wouldn't be made, for fear of being stuck with a defendants legal bill. I think both can be accomplished if written and structured correctly. I'm just not sure if this bill does that. I simply don't have enough details to know.
An example of what I'm referring to is the state of Massachusetts new rule with respect to appeals of traffic violations. The state has now added a court fee to any ticket appeal. It ranges from $25-$50 per ticket. The idea behind it was to compensate for the cost of the court process brought about by an appeal. My issue with this is two fold. First, that cost should be covered the value of the ticket that has been issued. Second to that, is the idea of charging someone to prove their innocence. If I have been wrongly given a citation and fine, I shouldn't be forced to additionally pay the people issuing that fine, in order to prove my innocence. In essence, the government is going to collect money either way, so what incentive is there to not issue tickets? I recently went through this. I was cited for something I shouldn't have been. I appealed. I won my appeal, but was forced to pay $25 to do so. I thought that was wrong. Anyways...
‘Loser Pays,’ Texas Small Business Wins
May 31, 2011 10:09 A.M. By Stephen DeMaura
Gov. Rick Perry and the Texas state legislature want the rest of the country to hear this message loud and clear: The Lone Star State is open for business.
In a unanimous vote last week, the Texas senate adopted ‘loser pays’ tort-reform legislation, which says that a plaintiff must pay the winning party’s legal fees if their complaint is judged to be groundless. On Wednesday, the Texas house concurred. Governor Perry, who had championed the legislation from its inception, signed it Monday night.
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"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him." Leo Tolstoy, 1897
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"Some guys play in all-star games, some guys don't. I don't know who picks all those all-star teams. In all honesty, I don't know who picks the combine, for that matter," Belichick said. "How does (Miami-Ohio offensive lineman Brandon) Brooks not get invited to the combine? How did Vollmer not get invited to the combine? I don't know. We can't really worry about that. We just have to try to evaluate them the best we can."
Not a bad idea. I'm generally wary of tort reform, since it tends to be cited as a method of cost control. Only its effectiveness as such is generally vastly overstated.
Last edited by JackBauer; 06-03-2011 at 10:25 AM..
first off, RW, yeah, that's bs when the government charges you either way.
"Loser pays" is what most private contracts state -- loser will reimburse for reasonable legal expenses. Sometimes it can be unclear who the "loser" is, and there can be disagreement re. what is "reasonable," but in theory it makes sense.
I like that the language in this bill apparently says "groundless." I'm just a layman with familiarity with contracts, but I would think this is a higher bar to require the "loser pays" approach -- in other words, not all losing suits are groundless.
The one key thing that needs to be in place, imo, is the "reasonable" factor. As you point out, we want to get rid of frivolous cases, not legitimate ones that happen to lose. This particularly comes into play when there are vast disparities in resources between 2 parties. For some people a $10k legal bill would be crippling, while the parties they might have a legitimate suit against would be starting the clock above that figure.
first off, RW, yeah, that's bs when the government charges you either way.
"Loser pays" is what most private contracts state -- loser will reimburse for reasonable legal expenses. Sometimes it can be unclear who the "loser" is, and there can be disagreement re. what is "reasonable," but in theory it makes sense.
I like that the language in this bill apparently says "groundless." I'm just a layman with familiarity with contracts, but I would think this is a higher bar to require the "loser pays" approach -- in other words, not all losing suits are groundless.
The one key thing that needs to be in place, imo, is the "reasonable" factor. As you point out, we want to get rid of frivolous cases, not legitimate ones that happen to lose. This particularly comes into play when there are vast disparities in resources between 2 parties. For some people a $10k legal bill would be crippling, while the parties they might have a legitimate suit against would be starting the clock above that figure.
Agree 100% Chico. One of the first things that came to mind was the cost of the legal bills the "loser" would pay. In dealing with lawyers for all kinds of business related transactions I've learned that their fees are certainly not one size fits all. Plus you don't want someone inflating a bill with the idea that the loser is going to pay. All of this can be regulated and guarded against with the proper language. If the bill is written correctly, as well as fairly and sensibly, then I think it could work. Groundless is also something I liked seeing as well, because like you said, a case can "lose" and not be groundless. If the aim is to remove the truly frivolous of cases, then I'm open to supporting it.
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To view links or images in signatures your post count must be 10 or greater. You currently have 0 posts.
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"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him." Leo Tolstoy, 1897
Would be helpful to know the actual incidences of frivolous law suits.. if not significant then this law may be frivolous...
Always wary of legal stuff coming out of Texas, they passed a law limiting the liability for doctors in medical malpractice, the savings were supposed to be passed down to the consumer.. so far the only beneficiaries are the hospitals, doctors and insurance companies.. insurance premiums are the same.
__________________ "Being the best doesn't mean you always win. It just means you win more than anyone else".. tweet from Kurt Warner to Tom Brady.
...Always wary of legal stuff coming out of Texas, they passed a law limiting the liability for doctors in medical malpractice,....
The good thing about this law, though, is that it isn't arbitrary, unlike laws and proposals that try to set limits on damages. One size fits all doesn't work.
A law like this is something anybpdy should be happy with, at least in theory, because it protects everybody and doesn't single anybody out.
(again, unlike arbitrary ceilings on damages -- if somebody causes damages worth x, and the harmed party can demonstrate that in court, no law should limit them to y instead)
The good thing about this law, though, is that it isn't arbitrary, unlike laws and proposals that try to set limits on damages. One size fits all doesn't work.
A law like this is something anybpdy should be happy with, at least in theory, because it protects everybody and doesn't single anybody out.
(again, unlike arbitrary ceilings on damages -- if somebody causes damages worth x, and the harmed party can demonstrate that in court, no law should limit them to y instead)
The subjective term "groundless" can be used for some, but probably will not be used for all.. it seems to vague and open to judicial interpretation.
The incidence of frivolous law suits and a better definition of the word groundless maybe be helpful..
One man's groundless is another man's passionate crusade.. so some folks may be discouraged from accessing the legal systems as their suit may be considered groundless. It does not seem to be a very liberatarian law to this viewer, in fact the opposite as the right lately seems to want to control everything and everyone(granny state).
Folks may not realize that their suit is groundless... in their mind they feel justified in doing what they are doing.
__________________ "Being the best doesn't mean you always win. It just means you win more than anyone else".. tweet from Kurt Warner to Tom Brady.
The subjective term "groundless" can be used for some, but probably will not be used for all.. it seems to vague and open to judicial interpretation.
The incidence of frivolous law suits and a better definition of the word groundless maybe be helpful..
One man's groundless is another man's passionate crusade.. so some folks may be discouraged from accessing the legal systems as their suit may be considered groundless. It does not seem to be a very liberatarian law to this viewer, in fact the opposite as the right lately seems to want to control everything and everyone(granny state).
Folks may not realize that their suit is groundless... in their mind they feel justified in doing what they are doing.
Some people should be discouraged from pursuing their suits, though. That's the point, after all.
Agreed re. defining "groundless." As I said I'm a layman, not an attorney, but presumably there is some meaning to the term. I would not support this law if it simply reverted to the common contractual language, which is simply loser pays, even if not "groundless."
I'd also like to see some similar law regarding attorneys involved in frivolous / groundless suits. (That's trickier ground, though. Personally, I'd argue that there are attorneys who pursue suits that aren't groundless but are frivolous -- I'm specifically thinking of ADA-related suits, but I'm sure there are plenty around all sort of government regs.)
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‘Loser Pays' Tort Reform passed in Texas
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