Welcome to PatsFans.com

‘Loser Pays' Tort Reform passed in Texas

Discussion in 'Political Discussion' started by Real World, Jun 3, 2011.

  1. Real World

    Real World Moderator Staff Member

    Joined:
    Aug 15, 2006
    Messages:
    27,136
    Likes Received:
    223
    Ratings:
    +533 / 6 / -2

    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.


    ‘Loser Pays,’ Texas Small Business Wins - By Stephen DeMaura - The Corner - National Review Online
     
  2. patsfan13

    patsfan13 Hall of Fame Poster PatsFans.com Supporter

    Joined:
    Jan 4, 2005
    Messages:
    24,870
    Likes Received:
    108
    Ratings:
    +239 / 8 / -13

    Good Job by R Perry and the legislator in Texas.
     
  3. JackBauer

    JackBauer Pro Bowl Player

    Joined:
    Mar 3, 2005
    Messages:
    16,096
    Likes Received:
    279
    Ratings:
    +651 / 6 / -9

    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: Jun 3, 2011
  4. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    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.
     
  5. Real World

    Real World Moderator Staff Member

    Joined:
    Aug 15, 2006
    Messages:
    27,136
    Likes Received:
    223
    Ratings:
    +533 / 6 / -2

    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.
     
  6. DarrylS

    DarrylS PatsFans.com Supporter PatsFans.com Supporter

    Joined:
    Sep 13, 2004
    Messages:
    41,804
    Likes Received:
    180
    Ratings:
    +367 / 11 / -27

    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.
     
  7. Holy Diver

    Holy Diver Pro Bowl Player

    Joined:
    Sep 13, 2004
    Messages:
    10,834
    Likes Received:
    15
    Ratings:
    +23 / 0 / -0

    #80 Jersey

    Our lawsuit happy public is truly the laughing stock of the world.

    This makes sense, in theory. Should make peeps think twice before wasting public money and time on BS.
     
  8. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    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)
     
  9. DarrylS

    DarrylS PatsFans.com Supporter PatsFans.com Supporter

    Joined:
    Sep 13, 2004
    Messages:
    41,804
    Likes Received:
    180
    Ratings:
    +367 / 11 / -27

    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.
     
  10. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    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.)
     
  11. mcgraw_wv

    mcgraw_wv In the Starting Line-Up

    Joined:
    Feb 5, 2008
    Messages:
    2,257
    Likes Received:
    7
    Ratings:
    +7 / 0 / -0

    "Well our legal team costs about 1 million a month, so sir, if you wish to try and sue us for our fault part killing your daughter, are you prepared to pay 3 to 4 million dollars if you lose?"
     
    Last edited: Jun 3, 2011
  12. Patsfanin Philly

    Patsfanin Philly Experienced Starter w/First Big Contract

    Joined:
    Jan 16, 2005
    Messages:
    6,759
    Likes Received:
    27
    Ratings:
    +70 / 0 / -0

    #95 Jersey

    Agreed. A less onerous requirement is what Pennsylvania did, requiring a COM
    a certificate of merit that a suit is NOT groundless. It puts the person signing it on the hook......without penalizing access to the courts for all.
     
  13. DarrylS

    DarrylS PatsFans.com Supporter PatsFans.com Supporter

    Joined:
    Sep 13, 2004
    Messages:
    41,804
    Likes Received:
    180
    Ratings:
    +367 / 11 / -27

    I like this alternative better, the term "groundless" can have a variety of meanings..

    As mentioned before be suspect of anything coming out of Texas..

    I like the idea of everybody having access to the courts, all the Texas law will do is leave out those with less financial resources..
     
  14. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    That's what we're referring to, though, about suits being frivolous or groundless, and fees being "reasonable".

    I think everybody in this thread has acknowledged that the devil is in the details.
     
  15. Patsfanin Philly

    Patsfanin Philly Experienced Starter w/First Big Contract

    Joined:
    Jan 16, 2005
    Messages:
    6,759
    Likes Received:
    27
    Ratings:
    +70 / 0 / -0

    #95 Jersey


    A hospital/corporation could have immense leverage to stifle a suit by virtue of the threat of huge legal bills to the loser. One man's frivilous is another's merited suit.
    None of us want to see a legitimate victim to be denied access by fear of crushing legal bills if they lose a valid suit.
     
  16. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    I think we've all acknowledged those concerns, haven't we?

    In the PA alternative you mentioned, who is signing the certificate of merit?

    Is it really that different when you look at the concerns we all have about ensuring access while preventing nuisance suits and other frivolous claims?
     
  17. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    I'd like to see Texas put their money where their mouth is, or what's good for the goose is good for the gander, or whatever...

    How about people who are defendants in criminal trials at found not guilty. If the suit is found groundless, shouldn't they be compensated?

    And anybody wrongly convicted, of course...

    Something tells me that's not happening, though :)
     
  18. Patsfanin Philly

    Patsfanin Philly Experienced Starter w/First Big Contract

    Joined:
    Jan 16, 2005
    Messages:
    6,759
    Likes Received:
    27
    Ratings:
    +70 / 0 / -0

    #95 Jersey

    http://www.pepperlaw.com/publications_article.aspx?ArticleKey=195.
    >>>>>The new rules require a plaintiff to obtain a written statement by an appropriate licensed professional, certifying “that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice or work fell outside acceptable standards and that such conduct was a cause in bringing about the harm.” Although the individual providing such a statement is not required to testify at trial, that individual must be competent to do so. As such, in a medical malpractice action brought in Pennsylvania, the certifying professional must comply with the qualifications for expert testimony established in state law.>>>>>
     
  19. chicowalker

    chicowalker Pro Bowl Player

    Joined:
    Mar 9, 2010
    Messages:
    13,102
    Likes Received:
    126
    Ratings:
    +253 / 3 / -4

    The one thing this does, which is good, is to make it clear from the start whether the suit is "groundless."

    Earlier you said that the person who signs it is "on the hook." Do you know if that's so? If not, I wonder if you get an industry of folks signing off for $; if it is, you run into the same problem of one person's legitimate sut being an other's passionate cause, or however you and another poster put it.
     
  20. Patsfanin Philly

    Patsfanin Philly Experienced Starter w/First Big Contract

    Joined:
    Jan 16, 2005
    Messages:
    6,759
    Likes Received:
    27
    Ratings:
    +70 / 0 / -0

    #95 Jersey

    Getting Sanctions Under The Certificate of Merit Rules - Law Firm White and Williams LLP Attorneys Philadelphia, Pennsylvania


    I didn't realize it before but it is the lawyer, not the expert who is on the hook for 'frivolous claim'

    >>>>Significantly, the Certificate of Merit rules require only that the plaintiff attorney — not the actual expert — sign the Certificate. The requirement exposes the signing plaintiff attorney to sanctions under state law (the equivalent of the federal court's Rule 11 sanctions).<<<<
     

Share This Page

unset ($sidebar_block_show); ?>