I didn't read the proposition. I heard a spokesman for the initiative discuss the initiative on the radio. Based on what he said, the defendant will be able to recoup all of his costs including his attorney fees from the plaintiff and the plaintiff's attorney if the plaintiff loses the lawsuit. The purpose of the law will be to discourage lawsuits by penalizing attorneys who file lawsuits they don't win. Again, these propositions are in the signature gathering mode and have not as yet been qualified for the 2010 ballot.
I heard a sound bite on the radio today where there would be a $150.00 an hour cap on how much a plaintiff's attorney could charge his client in a civil lawsuit. The total amount of his bill including all other expenses will be reviewed by the court to ensure the bill is not padded. The attorney will have to furnish an accounting of his time to the court before he can be paid for his services. The $150.00 an hour cap would only apply to the plaintiff's attorney and not the defendant's attorney.
The original guest speaker gave numerous examples of why these laws are needed. I must admit some of the reasons were extremely far out and not worth remembering or repeating. But if history has taught us anything it has taught us that the perception is the reality when dealing with these types of issues. If the bizarre examples along with the valid reasons are blasted out in sound bites to the voters often enough and enough voters believe the sound bites then the initiatives will pass regardless of whether or not the sound bites are valid.
If the initiatives get on the ballot and pass and become law it will mean this: Any plaintiff, including the plaintiff’s attorney, who files a lawsuit and looses the lawsuit whether by settlement or by a court verdict will be required to pay all the costs incurred by the winning party, the defendant, to defend against the allegations alleged in the lawsuit. So every time an ambulance chaser files a product liability lawsuit such as a lawsuit against a gun manufacturer and looses he/she will have to pay all the costs incurred by the gun manufacturer. That will definitely put a damper on frivolous lawsuits.
The companion initiative making the rounds for signatures would put a cap on attorney’s fees much like the fee structure in workers comp cases. I haven’t read the proposed initiative but according to a guest on a local talk show who is promoting the initiatives the cap would be based on hourly fees and actual costs rather than a percentage. The hourly cap would be set by law, not by what the concerned attorney wishes to charge.
The spokesman for these two ballot propositions gave some examples of how the system was being abused by unethical attorneys. He said the State of California along with cities and counties through out the state pay out hundreds of millions of dollars a year to settle frivolous lawsuits brought on by parasitic attorneys. One example was the infamous Rodney King incident where the City of Los Angeles paid 3.5 million to settle the lawsuit out of court. The City of Los Angeles recently paid out over six million to settle a hazing lawsuit brought on by a black firefighter who alleged other firefighters at his fire station put dog food in his spaghetti. According to court documents this behavior was commonplace as a form of initiation into the group. The plaintiff participated in the hazing of other firefighters but his feelings were hurt when it happened to him. Other black firefighters testified under oath that they did not wish to participate in the right of passage and they were not subjected to any form of hazing. They warned the plaintiff if he went along with the hazing he could be subjected to hazing himself.
The state paid out over 30 million is settlements and lawsuits last year brought on by inmates in the state prison system who alleged they were not adequately protected from other inmates by prison staff. One case cited involved an inmate who allegedly made an insulting remark to another inmate. The other inmate responded by grabbing the aggrieved inmate by the collar and shoving him against a wall. The aggrieved inmate filed a lawsuit against the state alleging he did not receive adequate protection from the prison staff, a protection that is mandated by law. The state settled the case out of court for $200,000.00. The inmate used the money he received in his settlement to finance a federal habeas corpus action which resulted in his release from prison pending a re-trial. The attorney who handled his case is only one of many lawyers who specialize in lawsuits against the prison system.
These ballot measures if passed and become law will only apply to California. However, these types of things seem to originate in California and spread through out the country.
The spokesman for the initiatives said the climate is right for these ballot measures because of the backlash against the government and the system in general. The voting public is sick and tired of a broken legal system and the parasitic attorneys who thrive on damaging others and the government for personal gain.
I am sure we will hear a lot about these proposed ballot initiatives as they gain momentum as the 2010 election nears. It will also being interesting to see who aligns with the pros and cons on these issues. However, I can almost predict who those players will be.
-- Modified on 10/6/2009 12:16:36 PM
but I can tell ya that most manufacturers would still rather settle than go to court....
heck.... you would not believe what gets settled.... it is rediculous.
A loser paying the costs of the lawsuit is not that big of deal, depending on how "costs" are defined. Indeed, on appeal costs are already usually taxed to the loser. If the initiative includes the winning party's attorney fees, or all expenses the wining party incurred as a result of the lawsuit, however, that would be a major change.
I didn't read the proposition. I heard a spokesman for the initiative discuss the initiative on the radio. Based on what he said, the defendant will be able to recoup all of his costs including his attorney fees from the plaintiff and the plaintiff's attorney if the plaintiff loses the lawsuit. The purpose of the law will be to discourage lawsuits by penalizing attorneys who file lawsuits they don't win. Again, these propositions are in the signature gathering mode and have not as yet been qualified for the 2010 ballot.
I heard a sound bite on the radio today where there would be a $150.00 an hour cap on how much a plaintiff's attorney could charge his client in a civil lawsuit. The total amount of his bill including all other expenses will be reviewed by the court to ensure the bill is not padded. The attorney will have to furnish an accounting of his time to the court before he can be paid for his services. The $150.00 an hour cap would only apply to the plaintiff's attorney and not the defendant's attorney.
The original guest speaker gave numerous examples of why these laws are needed. I must admit some of the reasons were extremely far out and not worth remembering or repeating. But if history has taught us anything it has taught us that the perception is the reality when dealing with these types of issues. If the bizarre examples along with the valid reasons are blasted out in sound bites to the voters often enough and enough voters believe the sound bites then the initiatives will pass regardless of whether or not the sound bites are valid.
I'm all in favor of frivolous lawsuits. In my view, they're not frivolous.
The way I see it, we can either have an economy that is very highly regulated, as they do in Europe, Japan, and Canada, or we can have a more free-market approach, like we do here. Lawsuits are one of the only things that puts a check on a company making products that will kill you.
So as long as you don't want a lot of regulations, then you should expect a lot of lawsuits. Putting regulations on lawsuits themselves is nothing more than an excuse to allow corporate hegemony over every aspect of our lives.
And they are already "regulated" in the sense that federal court rules and most, if not all, state court rules provide for sanctions against participants in such lawsuits. Further, a lawsuit filed or maintained without probable cause in some circumstances is an independent tort and the former plaintiff now defendant is liable for damages as opposed sanctions.
To the extent that the California initiative is designed to deter frivolous lawsuits, it is clearly overbroad bc as described by the OP it applies to all lawsuits and incredibly even settlements. And if the "loser pays" provisions includes atty fees,it would do far more harm than good. Think Erin Brockovich for an obvious example. That lawsuit would never have been filed if plaintiffs and their atty had to pay defense atty fees if they lost.
-- Modified on 10/6/2009 5:56:48 PM
If a lawsuit is frivolous and has no merit then the plaintiff and the plaintiff's attorney should be penalized. However if a lawsuit is valid, as many are, then there would be no penalty if the plaintiff wins.
Doctors are sued often and many of the lawsuits are indeed frivolous. Doctors have to pay whether they are found liable or not. Doctors should be able to recoup all the expenses they incur defending themselves including their attorney's fees if they are found not liable in a malpractice lawsuit. Why shouldn't the same standard apply to attorneys as well? Attorneys should be held accountable for their actions the same as everyone else.
defendant prevailed in the litigation of a non-frivolous lawsuit, what would be the effect of such a rule?
The answer is obvious. The attorney in a non-contingency case would either pass that cost on to his client, the plaintiff, or would refuse to take the case.
And in the contingency context where most med mal cases are litigated, the atty -who must pay several hundred thousand to finance the cost and receives nothing if loses - would then face an additional personal liability of paying for defense costs. So the atty would be unwilling to take the case on a contingency unless he felt liability was so clear he could take this extra risk.
The end result? Doctor's holiday! Not good policy, since all agree that the fear of malpractice lawsuits reduces doctor negligence.
-- Modified on 10/6/2009 7:59:32 PM
Do that, and it will mean that no lawyer will take up a lawsuit. The result is that a lot of people will needlessly die from irresponsible businesses.
" He said the State of California along with cities and counties through out the state pay out hundreds of millions of dollars a year to settle frivolous lawsuits brought on by parasitic attorneys. One example was the infamous Rodney King incident where the City of Los Angeles paid 3.5 million to settle the lawsuit out of court. The City of Los Angeles recently paid out over six million to settle a hazing lawsuit brought on by a black firefighter who alleged other firefighters at his fire station put dog food in his spaghetti"
You might want to check these statements for accuracy. The lawsuit by Rodney King certainly was not frivolous. He received a severe beating from LAPD officers. And in the Tennie Pierce case he did not receive "over six million" from the city. The settlement was for $1.5 million four years after the incident.