April 7, 2008

"Resurrect Rule 11"

In 1993 the U.S. Congress, urged on by organized litigators, gutted Rule 11, which for ten years had provided relatively strong remedies to those targeted by groundless litigation in federal courts. It's time to look again at the case for a stronger Rule 11, argue Zeke J. Roeser and Karen Harned (National Federation of Independent Business, in a new article for the Federalist Society's Engage.

March 5, 2008

Offer of settlement in Colorado

Done right, "offer of settlement" rules can curtail wasteful litigation by providing for a fee shift when parties spurn a bona fide settlement offer and then do less well at trial. There are all sorts of variations on the idea, however, and the Colorado Civil Justice League contends that the details of the proposed HB 1020 in that state make it worse than none at all (follow links to PDF).

February 8, 2008

Lawyers' Fees For Me, But Not For Thee

The Seattle school district that denied a pupil a school placement because of his race is arguing that its opposing counsel, Davis Wright Tremaine, should not be entitled to nearly $1.8 million in attorney fees because it took the case pro bono.

"Davis Wright Tremaine is a large law firm. They have a big name and blue chip clients," said Shannon McMinimee, assistant general counsel of Seattle Public Schools. "They definitely don't need to rely on their pro bono cases to make them money to sustain the law firm."

Gee, I guess that when you use racist criteria to deny someone equal access to public schools you should realize that lawyers' fees may be shifted, even if the law firm used by the aggrieved party is not an improverished one. That said, here's hoping Davis Wright donates its fee to charity: maybe to the Center for Equal Opportunity, for example.

February 5, 2008

Legal expenses insurance

Relatively obscure in the United States, this form of insurance is well established in the major loser-pays jurisdictions, where it typically (among other functions) helps protect individuals against the risk of owing a fee as a losing plaintiff at trial. That it (like other forms of insurance) might not be immune to gamesmanship and angle-playing, however, is suggested in this post from the popular U.K. fictional law blog, Baby Barista.

January 31, 2008

Loser-pays and the Vioxx settlement

The tension between the interests of relatively strong and relatively weak claimants -- which helps to stretch legal ethics to the breaking point in the Vioxx settlement -- would be more manageable if we adopted the sensible incentives of loser-pays. Thus argues PoL's own Marie Gryphon in this new piece at City Journal.

January 27, 2008

"Using Neuroeconomics Experiments to Study Tort Reform"

Now for something a little different, an "experimental economics" paper by Kevin McCabe and Laura Inglis from GMU's Mercatus Center:

This paper provides an overview of the tort process and introduces a scientific approach for evaluating tort reform proposals. In this paper, we describe an experiment that models the tort process and attempts to identify factors that promote pre-trial settlements. Results of the experiment indicate that promoting pre-trial settlements would benefit both plaintiffs and defendants, because money spent on costly litigation could be used to compensate tort victims and that speedy resolutions would give injured parties quicker access to the funds they need.

Continue reading   "Using Neuroeconomics Experiments to Study Tort Reform"

December 20, 2007

More successful countersuits by docs?

Not clear at all whether there's a trend -- and the legal system is set up to make it extremely hard for doctors to prevail in countersuits -- but the AMA's American Medical News notes that three Ohio doctors have succeeded in getting their legal fees paid by adversaries over the past six months, along with a similar such case in Mississippi. The real pattern to be discerned, if there is one, may be that the Ohio State Medical Association assisted in all three of the wins in its state "through its Frivolous Lawsuit Committee, a program that educates physicians about the practice and helps them defend against it". More: White Coat Rants.

December 10, 2007

Around the web, December 10

• Our kind of talk: "Frankly, I think plaintiffs' attorneys would support a true loser pays system." [Personal Injury Law Roundup # 39 at Austin, Tex.'s Perlmutter & Schuelke LLP; the weekly series, formerly hosted by Eric Turkewitz, is now hosted there, see predecessors #38 and #37]
• Not just here: lawyers in Ontario pressing for elimination of no-fault threshold [Toronto Star]
• You'll have to tell your auditors more under Sarbox, and then guess who can scoop up the information later? [NYTimes]
• Judge-shopping aided attorney Tillery in juicy $17 million payout in Sears appliance tipover class action [US Chamber/MC Record]
• Shut down Indian Point nuclear plant? Not so fast, Attorney General Cuomo [Applebome, NYT]
• Bottom-line pressures in legal practice undercutting civility, collegiality and professionalism, says Judge Baer as he sanctions Dorsey & Whitney [NYLJ]

Around the web, December 10

• Our kind of talk: "Frankly, I think plaintiffs' attorneys would support a true loser pays system." [Personal Injury Law Roundup # 39 at Austin, Tex.'s Perlmutter & Schuelke LLP; the weekly series, formerly hosted by Eric Turkewitz, is now hosted there, see predecessors #38 and #37]
• Not just here: lawyers in Ontario pressing for elimination of no-fault threshold [Toronto Star]
• You'll have to tell your auditors more under Sarbox, and then guess who can scoop up the information later? [NYTimes]
• Judge-shopping aided attorney Tillery in juicy $17 million payout in Sears appliance tipover class action [US Chamber/MC Record]
• Shut down Indian Point nuclear plant? Not so fast, Attorney General Cuomo [Applebome, NYT]
• Bottom-line pressures in legal practice undercutting civility, collegiality and professionalism, says Judge Baer as he sanctions Dorsey & Whitney [NYLJ]

November 6, 2007

Welcome Columbia Sci/Tech Law Review readers

The publication notes that fee shifts could pose a significant deterrent to the record industry's litigation onslaught against file-sharers: "Defendants with strong cases may be more willing to go to trial and to stand up to the RIAA if they believe they will recover their legal fees."