Welcome to the world of frivolous lawsuits

[The Templar]

Originally posted by Imran Siddiqui
You bolded the wrong part .

company that had loaded the tank car, and the shipper, all of whom had certified on the bill of lading that the tank car was in proper condition for safe transportation, had not performed an adequate inspection of the tank car, which would have disclosed the improper and misaligned gasket.

I see nothing wrong with the case you cited.

Yep, classic negligence - a clear breach of duty of care. The only queston there should have been the damages.

[Adam Smith]

Originally posted by Adam Smith the NTSB had absolved CSX of any wrongdoing.

You guys are missing the point. Aside from the disproportionate size of the award, the railroad had nothing to do with it. But they were the only ones with the balance sheet big enough to pay.

[Mordoch]

Originally posted by Adam Smith This was one of the first of the "environmental justice" lawsuits. Plaintiffs won this large award in part because they claimed that CSX switched tank cars in poor black neighborhoods of New Orleans, not in wealthy white neighborhoods. Somehow the jury managed to ignore the fact that the railroad yard was operating long before the surrounding houses were built.

I find this aspect of the case highly suspicious. Since the defense team gets to make their closing case last, it would seem impossible for the legal defense team for CSX to not get an opportunity to provide a rebutal for the argument. If the defense team showed how the railroad yard was already built before the nearby housing, and there were not other details such as other rail yards built in wealthy neighborhoods being closed and adding to the congestion of the rail yard in question, I find it extremely unlikely that the jury would have come to a decision for this reason. The defense team either did an increadibly bad job, there were other factors not mentioned involving this aspect of the case, or the jury did not rule the way they did for this reason at all.

[Imran Siddiqui]

You guys are missing the point. Aside from the disproportionate size of the award, the railroad had nothing to do with it. But they were the only ones with the balance sheet big enough to pay.

What the NTSB says is irrevelant. The Court decided the railroad had some negligence. According to joint and several liability (which most states have), any party that has any negligence (even 1%) can be liable for the full amount.

If you want to complain, do it for the theory of 'joint and several liability', not the tort system in general, because this tort award was not absurd.

[DinoDoc]

Originally posted by The Templar
New Rule:

Assertions of the existence ridiculous tort cases must include a citation to a reporter containing the decision. No cite and the tort does not exist.

Cool. My cases still exist.

[MichaeltheGreat]

Originally posted by The Templar
New Rule:

Assertions of the existence ridiculous tort cases must include a citation to a reporter containing the decision. No cite and the tort does not exist.

Nice rule, but unless there's an appeal, the vast majority of cases are unpublished, and not accessible to the ordinairy peasant. They're accessible to extraordinary peasants, of course, if you're willing to pay the copying costs for whatever it is you want. In such news coverage as these things get, the case numbers are often not reported at all.

I can tell you about all sorts of cases I've personally been involved in, but I'm damned if I remember the case numbers, have copies of that crap now that I've gotten rid of it, or can be arsed to go to Federal and state courts in several states to look them up.

[MichaeltheGreat]

Originally posted by The Templar


Have to disagree here. The American rule (the British rule requires the losing party to pay the winning party's costs) is the lesser of all evils. The idea is thus: just because the losing party loses does not mean that the winning party was factually correct.

For example, Ming may have swung his fist recklessly on the subway and injured me, but for whatever reason, I couldn't meet a preponderance of the evidence test that Ming in fact was reckless. Perhaps the jury didn't believe my eyewitness. Perhaps I even knew that my evidence was skating really close to preponderance and the case could go either way. Let's also say Ming is rich and hires Proskauer for his defence. All of these facts might disincentivize me from seeking redress against for actual negligece because I am worried about losing and having to pay for Proskauer. This effectively closes the court to the poor or those who are financially overmatched. In fact, it incentivizes Ming to threaten to overspend on defense in order to scare me off.

Yes, I know, it is unfair to Ming if he has to pay for a frivolous suit. But the controlling concern is assuring access to the court for everyone. Moreover, since the jury in a tort renders a legal judgement under rules of evidence that often place other values before truth, we recognize that the jury is making a strictly legal judgement.

Also, put the shoe on the other foot - you don't want factually innocent defendants who lose in court to have to pay for the wrongful winners costs do you?

Yeah, the American Rule sucks, but the alternatives are worse.

I'm aware of the intent, but it could be considerably modified without prejudicing the rights of plaintiffs to have their day in court.

If you want to know what I think of it, I have personally, in my lifetime, had to pay out over six figures in legal fees and unrecovered costs in six different civil actions in which I was a party, despite the fact that in three cases, I was able to show as a matter of law I could not be sued, in two more, I was able was able to get out of the cases with respect to causes of action against me individually on MSJ's, and in the sixth, the lead plaintiff was impeached to the extent that it was clear that factual allegations were completely falsified and that one witness (who walked with impunity) had committed perjury. The only satisfaction I got was in helping to put one ******* plaintiff's lawyer out of business, and making another one's practice so miserable that when I ran into him randomly on the street a decade later, his facial expression showed that he remembered me very well. His business also went to hell in a bucket, too, although he still hung on.

Therefore, having paid over 100 grand for the privilege, I piss on the notion of every peasant having his right to his "day in court." If you count my participation as a corporate owner/manager, my (indirect) share of costs of litigation for successful actions is even higher. Again, I'm not impressed with the right of every proclaimed victim's right to have the rest of us subsidize the ambulance chaser industry.

Some simple ways of correcting this sort of BS would be to make any unsuccessful litigant liable for all fees and costs if the litigant's case is dismissed on demurrer or MSJ.

Another possible reform is to give discretionary authority to the trier of fact to award fees and costs, subject to instructions as to whether the unsuccessful party had a reasonable basis for commencing their action.

Another solution is to see more widespread adoption of what in California are called Section 998 offers - which shift costs if rejected and the rejecting party fails to obtain a better result at trial.

Having those who are provably not guilty pay for the misfeasance or malfeasance of frivolous litigators and their ethicless whore plaintiff's lawyers is not a just or proper solution to anything.

It is a sop to the plaintiff's lawyer industry, though.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
What the NTSB says is irrevelant. The Court decided the railroad had some negligence. According to joint and several liability (which most states have), any party that has any negligence (even 1%) can be liable for the full amount.

If you want to complain, do it for the theory of 'joint and several liability', not the tort system in general, because this tort award was not absurd.

Yes, it was absurd. You had a jury which decided that since there was a deep pocket defendant, the people in that neighborhood just won the lottery.

[The Templar]

Originally posted by MichaeltheGreat


Nice rule, but unless there's an appeal, the vast majority of cases are unpublished, and not accessible to the ordinairy peasant.

Raising lack of knowledge to a virtue?

The problem with lots of these "outrageous" cases is that they are either urban legend or there are facts in light of which the case is not so ridiculous after all.

There is simply no point in arguing about the ridiculousness of the tort system if we are not debating solid facts. The average peon may not have access to case law, but that just means the average peon should not be arguing about topics for which they have insufficient information.

[Imran Siddiqui]

Yes, it was absurd. You had a jury which decided that since there was a deep pocket defendant, the people in that neighborhood just won the lottery.

What would be more absurd is having negligence go unpunished. Obviously the railroad was determined to be somewhat negligent.

[Flubber]

Originally posted by MichaeltheGreat


I'm aware of the intent, but it could be considerably modified without prejudicing the rights of plaintiffs to have their day in court.

If you want to know what I think of it, I have personally, in my lifetime, had to pay out over six figures in legal fees and unrecovered costs in six different civil actions in which I was a party, despite the fact that in three cases, I was able to show as a matter of law I could not be sued, in two more, I was able was able to get out of the cases with respect to causes of action against me individually on MSJ's, and in the sixth, the lead plaintiff was impeached to the extent that it was clear that factual allegations were completely falsified and that one witness (who walked with impunity) had committed perjury. The only satisfaction I got was in helping to put one ******* plaintiff's lawyer out of business, and making another one's practice so miserable that when I ran into him randomly on the street a decade later, his facial expression showed that he remembered me very well. His business also went to hell in a bucket, too, although he still hung on.

Therefore, having paid over 100 grand for the privilege, I piss on the notion of every peasant having his right to his "day in court." If you count my participation as a corporate owner/manager, my (indirect) share of costs of litigation for successful actions is even higher. Again, I'm not impressed with the right of every proclaimed victim's right to have the rest of us subsidize the ambulance chaser industry.

Some simple ways of correcting this sort of BS would be to make any unsuccessful litigant liable for all fees and costs if the litigant's case is dismissed on demurrer or MSJ.

Another possible reform is to give discretionary authority to the trier of fact to award fees and costs, subject to instructions as to whether the unsuccessful party had a reasonable basis for commencing their action.

Another solution is to see more widespread adoption of what in California are called Section 998 offers - which shift costs if rejected and the rejecting party fails to obtain a better result at trial.

I agree

In most Canadian jurisdictions these solutions ALL exist.

The norm is that the successful litigant gets their "costs" from the other party. However these costs, as defined, will usually recover about half of the actual costs of a matter. However the successful litigant will get their actual costs if they obtain a result better than what they offered in a formal "offer to settle".

IN practice, my client may be liable and I assess the damages at 100,000. I offer 120,000 but the plaintiff has stars in his eyes and forces a 3 week trial. They get awarded 100,000 and since this was less than my offer, they have to pay the defenses actual costs from the date of the offer to settle. I have seen many instances where the costs to be paid to the defense are greater than the award to the plaintiff, including one case where the " horribly injured plaintiff" was videotaped bounding up a staircase, playing basketball etc.

The Canadian system also allows a lot of judicial discretion on the costs issue. I have seen judges award actual costs in situations where they find one party's behavior to be objectionable or a claim to have no merut. I have also seen many cases where a judge refuses to award any costs where the losing side had some arguable points, where the law is unsettled or when they succeeded on anything in their action.


Everyone has a right to their day in court but that right comes with costs and defendents should have THEIR right to recover some of thrie money back when defending claims that lack merit

[chequita guevara]

Given a lot of judges prejudices, I'm not sure I like judical discretion.

I'd like some way of weeding out the obviously fraudulent or frivolous suits, without compromising the right of the public to get redress.

[Flubber]

Oh and MTG

I don't know enough about the facts of your brother's situation to comment other than to say it sounds as if he was treated horribly. I find that many nation's do not care for their veterans adequately , let alone , well.



On tort limits-- I am much more comfortable with an absolute limit than with intermediate ones. They are tinkering with the idea of intermediate limits here right now and some of them make ridiculous and illogical distinctions which can severely affect recovery.

In the logic of the SCC you do not have to be a quadrapelegic to get the maximum pain and suffering award. These were merely example of some of the most horrific injuries.

What happened is that injuries get compared and standards get set so that awards in Canada are now along these lines

Broken rib no complications less than 10k
mild soft tissue injury ( some pain for a couple of months 10-20K
moderate soft tissue injury 15K-30K
hip replacement 80-120K
Burns up to the maximum


You can argue its not enough and we all know of injuries where a billion dollars could hardly be enough but mots tortfeasors and even their insurers couldn't pay out a billion dollars. The system leads to some certainty on compensation levels and has allowed insurance rates to remain reasonable.


You seem to think that the limits are designed to protect corporate wrongdoers but the reality is that they just as often serve to limit the exposure of an average joe that made a mistake while driving on a slippery road.

[Imran Siddiqui]

I'd like some way of weeding out the obviously fraudulent or frivolous suits, without compromising the right of the public to get redress.

Well that's a very difficult proposition without some form of judicial discretion, che.

[Flubber]

Originally posted by Imran Siddiqui

I'd like some way of weeding out the obviously fraudulent or frivolous suits, without compromising the right of the public to get redress.

Well that's a very difficult proposition without some form of judicial discretion, che.

Excellent point Imran-- Judges are far from perfect but SOMEONE has to decide.

. . . and don't get me started on places that ELECT judges-- the best judges are the ones able to make the unpopular decisions