Feature
Legal Feeding Frenzy
U.S. court rules invite harassment and extortion. Here’s one way to fix them. Our March cover story.
(Page 3 of 3)
How to explain the fact that virtually nobody but Elliott has questioned the power of every plaintiff to impose costs on every defendant before any judge has looked at the lawsuit?
First, some history:
Until about 75 years ago, wrote Elliott, “federal courts reviewed the grounds proposed for suit prior to service of a summons ordering someone to come to court to answer charges,” although the review appears to have often been conducted by court clerks, not judges, and perhaps to have been rather cursory.
It was the adoption in 1938 of the Federal Rules of Civil Procedure that quietly eliminated any semblance of initial judicial scrutiny of plaintiffs’ complaints. At the time hardly anyone seemed to notice the new rule—dressed up as a mere technical change concerning service of process—that handed over the government’s power to order people to respond to lawsuits to private plaintiffs with a financial interest in coercing settlements.
One reason for the lack of attention to this shift, Elliott wrote, was that as of 1938, the cost of filing an answer to a lawsuit was minimal. Nothing remotely like the elaborate discovery process that would gradually push the complexity and cost of litigation through the roof existed. Over time, wrote Elliott, like “the fish that does not see the water that surrounds it,” we came to see this as the natural order of things.
But in my view, perhaps the most important reason for our legal culture’s comfort with the status quo is that waste serves the interests of the most important players in the system, including both the corporate defense lawyers and the plaintiffs’ lawyers. After all, all that money defendants spend ends up in someone’s pockets. Even the companies that pay for most of this in the first instance, along with their in-house lawyers, may have a muted sense of outrage because litigation costs are passed on to all of us in higher prices and insurance premiums, and thus have little effect on profits—other than to increase insurers’ profits. And most consumers (and jurors) are at best dimly aware that the waste comes at their own expense.
As for the judges, many were once plaintiffs’ lawyers themselves and have become habituated to legal waste. Almost all would see as unwelcome tedium any rule change requiring them to read and think about every lawsuit at the outset. Indeed, Elliott suggested to me that “many judges sit on the motion to dismiss for long periods (sometimes years) and rather than decide difficult legal issues, many of them use the costs of discovery to coerce settlements.”
In addition, the pro-plaintiff slant of the rules has long been in tune with popular-culture portrayals of corporate defendants as wealthy malefactors who seek to deny justice to injured workers and consumers, and who are easily able to absorb litigation costs as routine business expenses. The fact that bogus lawsuits end up costing the general public many billions of dollars via higher prices and insurance premiums receives little attention.
IS THE IMBALANCE between plaintiffs and defendants unconstitutional? No and yes. Not many federal judges will be receptive to the idea that they have been unwittingly violating the Constitution in virtually every civil case for the past 75 years. But Elliott makes a strong case that the current rules do violence to our values and constitutional traditions.
His strongest argument comes from the Fifth Amendment’s requirement that “No person shall…be deprived of life, liberty, or property, without due process of law.” The rules effectively require civil defendants to spend money (a form of property) to respond to even the most frivolous lawsuits, with no process at all, let alone “due process.”
Elliott’s second argument is that the Constitution assigns the judicial power to the courts, and that, as a general principle, government power should never be delegated to private actors to enrich themselves at others’ expense.
His third constitutional argument is that a frivolous summons is an unreasonable seizure of the defendant’s person, because the government requires no evidence that the suit has a reasonable basis in law and fact before ordering the defendant to spend time, effort, and money responding. “The government shouldn’t give plaintiffs’ lawyers a free hand to conduct investigations using government powers when the government itself would have to show a neutral magistrate that it was acting reasonably to get the same information,” Elliott told me.
While this third point finds little direct support in Supreme Court precedent, it resonates with Justice Louis Brandeis’ assertion that “every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed,” violates the “right to be let alone.”
In theory, notes Elliott, the rule might be constitutional if it were accompanied by a requirement that plaintiffs whose lawsuits are found to be unreasonable eventually reimburse defendants’ attorneys fees and court costs, something which is done in all the world’s developed nations except Japan and China. But in practice, our legal culture has long been unwilling to require this, no matter how far-fetched the plaintiffs’ claims.
So the only hope for progress on this front is to screen out claims that are implausible on their face without requiring defendants to respond. No doubt this would make more work in the short run for judges and magistrates, though not, I suspect, in the long run. It might trip up a few deserving plaintiffs, though these could then appeal. But the alternative is less appealing still: standing idly by as thousands of people—who have done nothing wrong—founder in a sea of costly legal bills and frivolous court filings.
Letter to the Editor View all comments (54) | Leave a comment
More Articles From Feature
http://spectator.org/archives/2013/03/18/legal-feeding-frenzy
Follow us:
ADVERTISEMENT
The Spectacle Blog
The #FreeKate Narrative Melts Down: Lies Exposed in Florida Teen Sex Case
Robert Stacy McCain | 5.25.13
SPONSORED LINKS
FLASHBACK TO: 1995
-
Pope Culture
A man of faith in a godless age is hitting Americans where it hurts.
-
Why the GOP Does Not, Like, Totally Suck
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
-
Dames at Sea
-
In the Absence of Guns
In Britain, defending your property can get you life.
-
The Metaphysical Martini
-
Counting the Costs of Clintonism
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
-
Chuck McHagel
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
-
The Legacy of Old John and Mother Fresh-Roasted
-
It’s the Best Time of the Year
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
-
The Bush Crack-Up
Was the President done in by the economy, or by the politics of the economy?
Clip of the Day
H/T to National Review Online
ADVERTISEMENT
Pseudo-Macarius| 3.18.13 @ 7:11AM
Well done, Stuart. No defendant should settle a bogus case to make it go away. That just encourages the unethical attorneys who file these cases.
alice921| 3.18.13 @ 12:24PM
Its definitely the most-financially rewarding Ive ever done. Make money with Google. last monday I got a new Alfa Romeo from bringing in $7778. I started this 9-months ago and practically straight away started making more than $83… per hour. I work through this link, http://tw.gs/YbVcey
markenoff| 3.18.13 @ 12:57PM
I make $3500 a week at home stuffing envelopes. I stuff them with heroin.
CJW| 3.18.13 @ 1:21PM
Remember the Henny Youngman or Rodney Dangerfield joke:
Send me $20 and I will tell you how I make money. After I receive the $20 I reply, that is how I make money.
TLP| 3.18.13 @ 1:48PM
Even though the Lawsuit was OBVIOUSLY BOGUS, the Liberal Judge kept the case going for more than Two Years.
And, then the author goes through a litany of other Bogus Lawsuits.
I appreciate all of the Legal Nuances that you believe are the Crux of the problem, but there is only ONE REASON for all of this.
The Trial Lawyers are the #1 Contributor to the Democrat Party.
Period.
You don't believe me?
Bernie Schwatz' Loral Space and a Waiver from The Rapist to sell Top Secret Missile Navigational Technology to the Red Chinese.
You're Welcome.
Occam's Tool| 3.20.13 @ 5:30PM
There is nothing wrong with the vast majority of plaintiff attorneys that couldn't be cured by allowing defendants to turn loose 5 hungry Rottweilers on any Plaintiff and their attorney who loses a case.
Did I mention that Malpractice Plaintiff attorneys, who lose 90% of their cases, should have their nether bits blowtorched each time they lose a case?
gray man| 4.5.13 @ 12:15AM
I made $10.00 stuffing alice921's brain into an envelope and selling it to a science project.
JD| 3.18.13 @ 1:06PM
You're blaming the victims.
Many people can't afford the risk of fighting these suits. The problem isn't their fault - it's the fault of the system.
Blaming people for acting according to the incentives of a perverse system is a left-wing thing. We don't need to emulate it.
BShep| 3.18.13 @ 7:57AM
When the politicians are lawyers and the judges are lawyers and the lawyers are lawyers, then OF COURSE, the only ones who get rich are the lawyers.
What do you call a thousand dead lawyers? A good start.
Why won’t sharks attack lawyers? Professional courtesy.
Any more entries? Especially, any NEW entries?
“The first thing we do, let's kill all the lawyers.”
markenoff| 3.18.13 @ 9:42AM
“The first thing we do, let's kill all the lawyers.”
"Dick the butcher, a character no one remembers, utters one of the few memorable lines from the entire three-part Henry the Sixth cycle. Dick's Utopian idea to kill all England's lawyers is his addition to the promises of the traitorous Jack Cade, who envisions a quasi-communistic social revolution, with himself installed as autocrat. Cade alleges that all lawyers do is shuffle parchments back and forth in a systematic attempt to ruin the common people. His demagoguery is simply a calculated appeal to simple folks' longing to be left alone. Yet one may recognize Cade's moral failings and still sympathize with Dick."
http://www.enotes.com/shakespe.....ll-lawyers
CJW| 3.18.13 @ 1:35PM
The quote is actually to kill the lawyers so that there are no lawyers to oppose the attempt to control the country:
"Cade: Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny, the three-hooped pot shall have ten hoops, and I will make it felony to drink small beer; all the realm shall be in common; and in Cheapside shall my palfrey go to grass; and when I am king, as king I will be, there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers and worship me their lord.
Dick: The first thing we do, let's kill all the lawyers.
Cade: Nay, that I mean to do. "
William Shakespeare, Henry the Sixth, Part II, IV, ii (1623), suggesting that all lawyers would have to die in order to impose his will as king
TLP| 3.18.13 @ 1:50PM
So, what you're saying is that Shakespeare got it Bassakwards.
I agree.
CJW| 3.18.13 @ 2:42PM
No, most people take the Dick quote out of context.
Look at Cade's statement. Sounds like Obma and the Dems campaign to the 47%.
markenoff| 3.18.13 @ 9:43AM
What do you get when yu cross a lawyer with the Godfather?
Someone who will make you an offer you can't understand.
SUBVET| 3.18.13 @ 10:32AM
Why do lawyers wear tight collared shirts....so you can't see their foreskin.
R Martin| 3.18.13 @ 1:00PM
Good one.
markenoff| 3.18.13 @ 1:03PM
A lawyer and a doctor are both driving on a winding mountain road at night coming from different directions. They come around a blind curve, they both cross the center line and they get in a fender bender. They both get out of their cars a little shaken up. The lawyer pulls out his cell phone and calls the cops. When he gets off the phone he reaches into his coat and pulls out a flask if whiskey. He takes off the top and hands it to the doctor. The doctor takes a swig and hands it back. The lawyre puts the top back on and puts it back in his coat.
"Aren't you going to have a swig?", the doctor asks.
"Not until the cops leave.", the lawyer replies.
markenoff| 3.18.13 @ 1:05PM
Two lawyers are watching TV when Eva Mendes comes on.
"Man I'd like to screw her," one says.
"Out of what?" replies the other.
Joellen| 3.18.13 @ 8:12AM
Federal Government = Absolute Power = Absolute Corruption = Absoolute Waste
And the beat goes on.
Mike G| 3.18.13 @ 8:42AM
I'm reminded of the time the company I was working for paid a woman $400 because she claimed "a jar of mayonnaise jumped off the shelf and landed on my foot".
R Martin| 3.18.13 @ 8:43AM
Most civilized countries address the issue of frivolous lawsuits quite simply: Loser Pays.
PolishKnight| 3.18.13 @ 10:25AM
Which would turn the tide for wealthy defendants. For example: The cigarette companies that for decades falsely claimed that smoking doesn't cause cancer and used every trick in the legal book to win cases and lie before congressional hearings (the best was the Clintonian trick of saying that their animal lab tests indicated that smoking is not addictive by defining the term addiction as something only applies to humans.
Small business owners would be terrified to go up against Goliath sized corporations that stiffed them. The Goliaths would make the claim that their attorney fees were in the millions and if the small business owners lost, they'd go under. The Goliaths could use these cases as warnings to others to stay in line.
The trick is how to properly define a case as "nuisance" or "frivolous." That should be attacked head on rather than a simplistic solution which may not work.
JD| 3.18.13 @ 1:07PM
You make a good point, but R Martin's is better. It simply cannot be legal to impose large costs on other people with frivolous claims.
TLP| 3.18.13 @ 1:54PM
I'm thinking that "Nuisance" and "Frivolous" are like Pornography.
You may not be able to Define it?
But, you Know It when you See It.
Kinda like your Dumbass Comment.
PolishKnight| 3.20.13 @ 9:54AM
Pornography has not only been defined, but even reinvented. The left defined a new form of pornography: "hate speech" and applied it selectively. They use it to stifle conservative speech. Ann Coulter and Mark Stein are muffled from speaking in those nations.
The Constitution is currently interpreted by The Wise Latina at the top and in lesser courtrooms by crony bureaucrats who make it say whatever they think it says. The devil is in the details and they're masters at finding that guy.
But sure, dismiss my dumbass comment. Who cares about what guys like me think? Oh, wait, the conservatives need guys just like me to turn out to vote to keep those poor millionaires from having to pay an extra 10% on their private jet and the horrors of gay marriage. Good luck with that.
Occam's Tool| 3.20.13 @ 5:32PM
Loser pays is how you reform medical malpractice laws, however.
Jacob McCandles| 3.18.13 @ 8:56AM
2 things must happen for tort reform to occur:
1. The Trial Lawyers Assn must stop giving all their money to democrats.
2. The media has to start pointing out how much damage our civil tort system does to this country.
good luck folks.
JD| 3.18.13 @ 1:13PM
The media prefers to do something else. It reports every "settlement" that a big company engages in as de facto admission of guilt and reason to pursue a more anti-business political agenda.
They would never bite the hand that feeds them!
Harry the Horrible| 3.18.13 @ 9:04AM
We need "Loser Pays." That will put a dent in frivolous law suits.
Bob K| 3.18.13 @ 9:15AM
Absolutely!
And this article should have been slated for a Friday column so it could have received comments throughout the weekend.
Bob K| 3.18.13 @ 9:10AM
If my memory is correct the "angry man" who sued the Dry Cleaner WAS a lawyer.
If the SOB had been subjected to legal disciplinary action for this incident it would have had the legally feared "chilling effect" on filing other bulls--t cases like this!
Albert Constantine Jr.| 3.18.13 @ 10:15AM
Actually, I think that the plaintiff was not merely a lawyer, but a judge (though my recollection was it was an administrative law judgeship, such as worker's compensation or similar specialty).
TLP| 3.18.13 @ 1:56PM
It's 1:55 Albert.
Do you know where your Pants are?
Occam's Tool| 3.20.13 @ 5:34PM
Albert: it was a judge. You are correct.
Bob K| 3.18.13 @ 9:24AM
My policy for many years has been never to vote for a lawyer in any elective office, other than DA or Judicial, when there was a non-lawyer running against him.
I think that this is good advice for everyone.
Any lawyer elected to any position which is not either legal or Judicial should be required to put his/her license to practice law into escrow for the length of time he/she is in office. (Sorry for the legalese.)
No one elected to public office any where should be allowed to have any association of any kind with any law firm.
gene| 3.18.13 @ 9:34AM
Loser Pays.
And if you have a REAL legit case and you are poor, a lawyer will still take you on a contingency basis.
TLP| 3.18.13 @ 1:56PM
PUBLIC DEFENDER.
markenoff| 3.18.13 @ 9:37AM
Lawyers are the kindest, bravest, warmest, most wonderful human beings I've ever known in my life.
fmm| 3.18.13 @ 10:28AM
Must be fun to take mind altering drugs :).
JD| 3.18.13 @ 1:11PM
Not as wonderful as social workers, who are almost as awesome as community organizers!
TLP| 3.18.13 @ 1:59PM
I'm not a Lawyer, but I did stay at a Holiday Express Inn, last night, where I played with myself while watching Ally McBeal Reruns on T.V.
NedB| 3.18.13 @ 10:10AM
I recommend altering the court system slightly. Use the Frank Herbert court rules. You know, the winning lawyer kills the losing lawyer. ;)
wrlord| 3.18.13 @ 12:36PM
You know, I'm getting tired of all this "blame the lawyer" BS.
First of all, for those of you demanding that the loser pays all legal fees, we ALREADY HAVE THAT for frivolous suits.
Do you want that for all suits? Do you want to have to pay millions of dollars in legal fees because, although you could only afford a street-level sole practitioner, the corporation you sued could afford a top-tier law firm? And now you have to foot the bill?
Tired of frivolous law suits? Blame the JUDGES. A lawyer has an absolute obligation to posit any cognizable claim on behalf of a client. What makes a claim cognizable rather than frivolous? The fact that judges have allowed such claims before. If the judges abdicated their responsibility by allowing a seemingly frivolous claim to go forward, the means it is legally not frivolous, and the next lawyer on the next case has a duty to bring the same sort of claim if it will fly.
As for Mr. Taylor's idea that we should have judges read through complaints before they are even served or filed, it would add an enormous expense and backlog to the courts, and worse, have a chilling effect on the right of every free man to have access to the courts. Access to the courts by all the citizens is one of the cornerstones of our free society, and limiting that would strike a major blow against the liberties guaranteed in the Constitution.
CJW| 3.18.13 @ 1:46PM
The Federeal Rules and most state rules of procedure allow a judge to impose the costs and fees on either side if there was no reasonable basis for the lawsuit or the defense of the suit.
As for tort reform, the government already has tort reform for itself, but not for private citizens.
If you want to sue the city,county, or state your suit must be one of the suits allowed by the government. And the damages for pain/suffering are capped at usually 500,000.
So is you get maimed by a City bus you will get much less than getting crippled by a Pepsi or Coke truck. This shows the hypocrisy of the Dems who regularly vote against damage caps on medical malpractice and other personal injury claims, but approved all the caps and limitations on suits against the government.
Pa, like many other states, did some limited tort reform on medical and other professional liability claims. Before you file suit you are required to have a medical, or other expert, report stating there was negligence.
TLP| 3.18.13 @ 2:02PM
He thinks he's a Warlord.
He doesn't understand what you're sayin.
wrlord| 3.18.13 @ 2:33PM
Do you? I don't see him disagreeing with me.
It's frightening that you get to vote. There ought to be an IQ test.
Occam's Tool| 3.20.13 @ 5:38PM
I have never lost a med/mal lawsuit. I HAVE, however, been sued by a plaintiff who couldn't find a SINGLE expert witness in the USA to take on her case.
wrlord, you must be an attorney. Med/mal plaintiff attorneys LOSE 90% of the time. Sorry, I have no problem with Loser Pays. Plaintiff attorneys can simply buy Litigation insurance.
JD| 3.18.13 @ 1:10PM
This article understates the problem.
It understates the cost of insurance, which spikes due to what it costs to have liability coverage in this environment.
It understates settlements that occur before going to court at all, under precisely the same extortion.
And it understates left-wing media's favored practice of trumpeting settlements as de facto admissions of guilt, for use in building the case for collectivism by virtue of the "evil" of business, when in fact the settlements are simply submissions to the extortion system that the Left created.
Job| 3.18.13 @ 1:41PM
Simple solution: PPACA or Protection from Plaintiffs and Affordable Council Act.
basically free legal council provided by our Uncle who want his tentacles in all things. Reverse Clove and Pliven.
JD| 3.18.13 @ 1:46PM
“[I]t is unfair and humiliating,” asserts Elliott, “to subject poor people to pre-service review of their lawsuits but exempt those wealthy enough to pay a filing fee.”
WHY?
This evil left-wing idea, that it is UNFAIR that people have to pay for things, causes incalculable harm to our society.
Ability to pay is not some genetic condition that people are stuck with. It's the ultimate measure of merit. There are innumerable ways to produce value in this world, and wealth simply reflects how much you have actually produced (and traded for currency).
Paying for things is definitional merit. It's earning them. Separating earning from getting causes terrible consequences for a society.
Now, that doesn't mean that in this context, frivolous lawsuits shouldn't be reviewed before they start soaking their victims. But the rationale stated here was terrible.
NoGoBlue| 3.18.13 @ 4:27PM
What's the difference between a terrorist and a female attorney?
You can negotiate with a terrorist.
Deerknocker| 3.18.13 @ 4:55PM
I don't see why there cannot be some pre-filing review done on cases that promise to generate significant legal cost. If, upon that review, it appears that a case may lack merit, the reviewing judge could order the plaintiff to pay a percentage of final litigation costs should he be unsuccessful; said percentage to be proportional to the perceived lack of merit. A perceived frivolous lawsuit may generate a responsibility for 100% of the litigation costs whereas a plaintiff in a suit with merit would not have to bear any costs. A similar review could apply at the filing of an Answer to deter frivolous defenses. No one would be prohibited from filing suit or proceeding with a claim, but would have to do so at some risk in the event of frivolous pleadings.
hrgfue | 3.18.13 @ 8:46PM
Which is the best blog for us.we are enjoy it and will show them to everyone.
Marc Jeric| 3.19.13 @ 2:28AM
We have here inthe US about 1,100,000 lawyers, of whom some 100,000 are trial lawyers looking for "victims" - usually trolling for them with TV commercials.
Great Britain, Japan, and Germany together have a total of about 35,000 such lawyers. How come?
Because in America you can sue anybody, and if you lose you just walk away looking for the next victim. Everywhere else the loser pays automatically all the costs of the defendent, direct and indirect, plus the full court costs.
A suitable tort reform would boost our economy by about 10-15% immediately in the first year - with lower prices and higher wages.
TORT REFORM!!! NOW!!!