The US legal system could be getting scarier by far

Remove all ads!

I, like many others find some [tort] cases brought through the American legal system quite incredible.

However, the plot takes quite a sinister new twist. The American Bar Association is proposing some quite interesting (read scary) new guidelines for the pracice of law.

A nifty little essey on the attempted powergrab by the ABA here.

The premise is so outrageous it surely will not come to pass, but you never know. If it does, I think our US friends should all be worried.

Sir Bel, did you know about these proposals?

 

At least we have a legal system, unlike hmm... lemme think, Afghanistan, perhaps.

 

Nice perspectives.

The american law system isn't bad per se - it just seriously went out of hand. So the institute of punitive damage makes sense. Basically. Giving it in the hands of a jury is nightmarish. An example: You cause some $ 1.000,-- damage - after a US supreme court sdecision your penalty may be up to 500x that, if the jury thinks you've been an *******. And that decision wasn't even undisputed, some of the judges didn't want to have any restrictions here Law lobby? Honi soit qui mal y pense

Sueing a foreign company which has an office in the US makes sense. Basically. It surely eases it for an american to get his *right*. This rule especially is abused in a robber-baron manner.

It is horrid for foreign companies which face the terrific US penalties and - patriotic juries (it was estimated that in approx 80+ % of all cases non-american companies loose their cases in the US, surely not alone a result of them making false claims). It is extremely difficult to win cases about patent right violations by US companies in the US.

Another example: Germany and german companies paid billions for compensation collectively for slave work and holocaust survivors by now. However, a company that has existed in WW-II already and now has an office in the US has a good chance to face new compensation claims in the US, for some more few millions up to billions. Even if it has paid compensations after german laws. They pay twice.

Bel, how much "share" of a compensation paid does the lawyer usually get? 50%? 33%? From a fictive $ 1.000.000,--? Nice. Greed is what's ruining the US legal system.

[ April 25, 2003, 20:13: Message edited by: Ragusa ]

 

The amount is generally negotiated with the client...So there is no definitive number. The average is one third (33%), which includes all costs of the litigation. 50% is a little high, but it's not unheard of.

Attorneys can also negotiate an hourly rate for their time and expenses. But it is up to the client to approve any rate. So the best thing to do is evaluate your chances of success in a lawsuit, then discuss probable costs with an attorney.

 

That's scary.

http://www.boston.com/dailyglobe2/113/nation/About_6_juveniles_found_in_Guantanamo_camp+.shtml

But they don't break international law. They always avoided to sign the UN-treaty which grants children rights.

But it's no use at all. The Americans won't change their laws. They're happy with it and that's what they deserve.

The problem is, how can we bring them to keep their hands to themselves and stay with their law on their side of the pond ? I am scared, they're maybe planing to bless us poor fellas with their sense of justice.

At Laches: As I stated, imho Americans can do what they want. I start to get a problem with it, when foreigners are involved. I mean not foreigners inside the USA, I mean foreigners outside the USA. Or, in different words, my question is, how to contain American law to America and stop it, when it tries to get over the atlantic ? Which of course is not an American problem, it's an European problem.

And Ragusas Example of a German company which has to pay twice for the same is very good. Actually, it's not the Americans who suck, it's the Europeans who suck, because their not able to stop claims based on American law which contradict the applicable Europen law just when they try to leave the east-coast.

This means European politicans say, that American commercial and penal law is dubious but than they say who cares, we're selling them stuff and make a whole lotta money out of them. In other words, they're too greedy and have neither backbone nor cojones. That's a disgrace !!!

[ April 25, 2003, 21:38: Message edited by: Yago ]

 

Edit -- I don't see what the Guantanamo bay article has to do with anything unless this is to become anothe pile on America thread, which may be par for the course I suppose.

There are already two issues here it appears,

1) the ABA proposal, and predictably

2) the attack American legal system issue, i.e. those greedy s.o.b.'s.

With regards to the ABA proposal, it strikes me as overbroad, but I'm not familiar enough with it to comment that much. That said, I'd like to point out to those who may not be familiar with the ABA that their power is..... well, basically nil. That's not really true, they are influential in that the state bar associations will often follow some of their proposals but the ABA doesn't have the power to make it illegal for an accountant to do your taxes like the article may imply.

Further, the problem the ABA is seeking to address is real. It appear thogh that they're killing.... not a fly, the problem is more serious than that, but a..... I dunno, dangerous animal of some sort?....with a bazooka. I perceive the problem as legitimate particularly in the context of worker's compensation. There is now a growing industry of people offering 'legal advice' in the context of worker's compensation who appear to be, to the average person, lawyers. They're not, they're just blokes. Now, I'm not really knowledgable about worker's comp. law but I know enough that these people have many times botched up a workers comp. claim (workers comp works under its own administrative rules) and sort of churn these workers comp cases out like a factory until they get to a certain point when they can't go any further, and then they send the injured employee to an attorney. By this time however, the groundwork is a mess and the employee may be screwed. I know for a fact this happens fairly often because the law isn't clear in defining 'practice of law' and so these type of groups get away with their work.

So, I really believe there is a legitimate concern underlying the drive and the article doesn't even bother to mention it choosing instead to label it as a sort of greed based protectionism.

Again, I don't work in the worker's comp area.

2)Those damn greedy American lawyers and plaintiffs.

This is an area I feel there is a tremendous amount of disinformation and this article is part of that imo.

For example, it states that by the year 2005 Americans could be paying $1,000 out of pocket as a result of these out of control lawsuits. Well, check out the source for this figure at the bottom of the page. Who is the source? An insurance consulting firm. I'll get back to this later. Look at the numbers provided at the link to Fortune.

Compare 1950 at $87 out of pocket to 2001, the latest figures, at $721 out of pocket. Oh no!! Look at the explosion and the way it's costing us!!! Right? Well, let's look closer. According to the Grandfather economic report $1.00 in 1950 would equal $0.13 today. That's about a 7.8 times difference due to inflation. Multiply $87 by 7.8. What do you get? You get $680. Hmmm, not quite as staggering an explosion when you compare $680 to $720 is it? Indeed, I suspect this number could fluctuate yearly indicating that the out of cost expenses may be static, but I'm not a big fancy insurance company that can go out and hire a large firm to crunch numbers for me for P.R. purposes so this isn't backed up.

The whole: 'greedy court system is out of control' myth really gets to me. It is always addressed toward "tort" cases. What is interesting is that according to the National Center for State Courts, which studied 16,000 trial courts across all 50 states "There is no evidence of a tort litigation explosion." According to the Wall Street Journal the largest category of actions is "businesses suing businesses."

The 'greed' is out of control and ruining the system! Right? According to the Rand corporation the median verdict excluding defense verdicts is $25,000 while the median verdict including defense verdicts is less than $10,000. Yet the comments you hear is like Ragusa's above about "50%, 33% from 1 million." Folks, that ain't happening.

There is also a complaint about punitive damages. I know that in many states already cap punitives. North Carolina for example caps them at $250,000 or 3 times compensatory. (I just happened to look this up not long ago.) What is disregarded is that, it is extrememly uncommon to actually survive summary judgment on a punitive damages claim let alone win a verdict. Even when a verdict is won, it is almost never for the cap limits.

There is, imo, a great misunderstanding of what a 'tort' case is which leads to a lot of the backlash imo. People hear 'tort' and think that it means a med mal or PI claim. Well, 'tort' is much broader and can include things like one case I was tangentially involved in years back, representing a state against exxon, for knowingly deceiving the state about royalty obligations thaat ended up in a $3.5 billion dollar verdict. (the firm got 14% and I got....nothing) Now, that's big money. See what happens though with that verdict? Insurance groups can classify that as a tort and lump it in with PI, med mal cases etc and suddenly it looks like there are huge amounts of money being paid out due to 'torts.' Well, it's true there was one huge case against an oil company that was primarily business related but also included some tort elements but how fair is it to judge PI claims based on that suit? That's what is being done commonly.

If you remove asbestos cases from 'torts' my understanding is that there has actually been a decrease in filing over the last couple of decades. Asbestos is a commonly attacked claim, the assumption being they're manufactured claims. I'm not that familiar with it, but I know the use of asbestos was in full swing in the 70's and earlier. I also know that because of the way asbestos works it often takes 20 years plus for things like cancer due to asbestos to start being seen in things like mesothelioma (which is REALLY nasty stuff.) So, it appears to me that if there is an increase due to asbestos suits that it is consistent with the science. Is this a problem?

One of the greatest areas of fervor regarding the 'out of control greedy' legal system is with regards to med-mal. The assertion is these cases drive up insurance costs which get passed on to the consumer. Problem is, that we know that the premium cost to, for example, internists is a couple hundred dollars less in states without 'tort reform' as opposed to in states with 'tort reform.' (I'll see if I can find this again.) This doesn't make sense if tort cases are what is driving up insurance costs, you would expect the opposite. We also know, for example, that in Virginia 14% of doctors account for 100% of all med mal claims. So, who needs to be policed?

Look, the American system is far from perfect. It has serious faults. No system is perfect. I'm not opposed to some 'tort reform' (for example, I would support capping punitives based upon a % of the defendant's worth and capping non-economic damages at a reasonable level but not one necessarily tied to economic damages for a variety of reasons.) However, to decide the best way to approach the "problem" you have to first understand what the "problem" is. That isn't happening. What is happening is a great deal of misleading information.

Just how 'greedy' has the system become when the real dollar difference being paid as a result of law suits is $40?

 

What I find frightening is that Americans seem to be the most suit-happy. While this is not bad per se, I've read about cases about people suing over practically nothing.

How true was it that someone sued McDonald's for not saying that their coffee wasn't hot and that you could hurt yourself if it spilled on you? Apparently the person in question was in a car and due to her(?) stupidity spilled the coffee. She won. That's why they say all of McDonald's cups have warning labels.

Also, do many countries have Good Samaritan laws? In the US, I hear each state's laws might differ. At any rate, is it true that you can get sued for coming to someone's aid, let's say an accident victim, and you "cause" more harm? So if you're the type to help, like I am, you should first check the law when you enter the US or a different state.

 

Charlie - The McDonalds case is true. The woman in question suffered burns on her lap when she spilt her McDonals coffee (bought 2 minutes earlier) in the car. This sounds stupid, but it wasn't until, from a link from someone on this site, i read the details and discovered how hot McDonalds heat the coffee - 200°c! The article said that the optimum for speed heating is 150°c, more than that is no faster. IF the coffee had been just 150°c her burns would not have been so serious. At first it seems very stupid, but when you hear the details of that case there do appear to have been viable reasons for suing.

On a final note, McDonalds still heat the coffee to 200°c, only this time with the nice little label on the cups

I will try to find that article, since it was some time ago that i read it.

 

Since water vapourises at 100° Celsius, I find it somewhat hard to believe that McDonalds heats their coffee to 200°C...

That aside, I totally believe that if you spill coffee on yourself, it's your own bloody fault. I have neither a desire nor intention to turn this into an US-bashing thread, but there seems to be a lack of people able to assume personal responsibility for their actions "over there". There just might be a connection between this and the, pardon me, completely frivolous tort laws that exist in the US.

 

This McDonald's rumor is like a nasty infestation that just will not go away. Here was the previous thread:

http://www.sorcerers.net/cgi-bin/ultimatebb.cgi?ubb=get_topic;f=20;t=000055#000000

 

It was obviously the main fault of McDonalds, beeing so insane to serve 190 degrees hot coffee, so they owed the plaintiff/victim compensatory damages.

The problem is 480.000 punitive damages. I know it's only 3 times the actual damage. But punitive damages are in itself a perversion. We don't have puinitive damages. We've got rid of them in the middle ages.

Yes, I know the reasoning behind punitive damages. But that's not enough to justify them in my view.

But again, Americans can do in America what ever pleases them. The moment an American lawsuit is filed against Europeans, clash of civilizations. Punitive damages are the relict of archaic times which have since centuries no longer a place in Europe. Americans paying punitive damages to other Americans. That's funny. Americans demanding punitive damages from Europeans, that's more than only annoying.

 

Laches, thank you! That was indeed the very post (not a link, i was confused) that i was reffering to. Though it seems i was off by 10°c each time lol.

[edit] after re-reading i seem to have heard that the coffee is still that hot from another source, so the reliability of that part may not be high, it was quite likely from a friend of a friend or similiar.

Oh what a lovely string of quotes from the case -

"(c) McDonalds heated its coffee to 185-190 degrees"

"(e) He also testified he knew that coffee served above 180 degrees was not fit for human consumption."

"(h) McDonalds admitted knowing most people consume their coffee immediately."

What were they thinking? They are serving 180+ degrees coffee, knowing that it is not fit for immediate human consumption? It's scary that it's real, humanity

[ April 26, 2003, 20:04: Message edited by: Lazy Bonzo ]

 

Just a note Yago -- when a US citizen is abroad and, say spray paints something, and is subsequently caught, tried, and sentenced to a flogging American's seem to on the whole say: well, he was in their nation and so should obey their laws or suffer their consequences. He knew where he was and decided to go anyways and spray paint things fully aware of what entailed, too bad for him.

Likewise, when an American business is abroad in Europe it has to comply with European law. It has to comply with differing environmental regulations, difference in tax status, differences in duties toward employees, differences in.... They can't whine and complain because they've chosen to do business in Europe, of their free will, knowing full well the consequences.

Likewise, when a company comes to America to do business, they know full well that they have to comply with American laws in advance. They choose to come to America because they want to make a buck and so the picture you paint of the poor abused multi-national company is not very compelling.

Don't want to deal with punitives? Don't deal with America and quite your whining.

Also,you complain about the 480,000 but that kinda ignores just below where it says the case was settled out of court for an undisclosed amount. In other words, I'll guarantee McDonald's didn't pay that much out. Also, given that the original punis were 2.7 million which equaled 2 days of coffee sales, the implication that the punitive damages in the case was unreasonable is, imo, completely out of touch with the reality of the type of businesses being dealt with.

That said, I'll say it again, the chances of surviving summary judgment with a punis claim is very small and the chance of actually getting them at a later date is even smaller.

 

Laches, your absolutely right. But the problem is more difficult. I agree 100%. If you're IN America, you're under American law. But if you're OUTSIDE of America, you're not. And vice-versa.

The case of the German Tennis-player Becker. He married in Germany a woman who lived herself in Germany, but she's US-citizen. Ok, both lived in Europe, paid taxes in Europe (He, He, Becker was caught evading taxes, because he wrongly claimed to be living in Monaco). Then Beckers wife filed divorce. Where ? Florida ! More money for her under American law than under German Law.

The case of Shawne Borer-Fielding. Former Beauty-Queen of Texas and obviously US-citizen. Wife of our moron of ambassador to Berlin. Is suing right now 3 German newspapers for personal injury (not exactly, but I don't know the English word). She lives now in Berlin, earlier she lived in Switzerland. Where is she suing ? In Texas !!!

Living in Germany, stories concerning the sex-scandal of her husband were published in German Newspapers, in German, in Germany. Why the hell is she suing in Texas !!!!!!

The Problem is, that US-Judges recently began to ignore the concept of forum non conveniens. And I think it's a problem of the EU and the other European countries, to remind them, that there are frontiers.

[ April 26, 2003, 20:35: Message edited by: Yago ]

 

One of those is a domestic relations suit. I'd point that out first. Domestic relations disputes are a peculiar breed I try to avoid but there is a long history of forum shopping with domestic relations filing because some areas allow you to divorce much more easily than others. This usually happens consensually. I suspect there is either some connection to florida in the case you mention that you aren't mentioning here or, it is consensual, or it was filed but that's it. That's another thing that sort of bugs me. People rail about 'stupid suits' then they get dismissed and you don't hear about it -- kinda like the case of suing McDonalds for being obese, everyone screamed and yelled but when the judge immediately laughed it out of court not a peep.

Well, since writing above I did a quick search and discovered this:

http://www.indianexpress.com/ie/daily/20010201/isp01016.html

According to that they divorced in Germany. Which makes me wonder if your complaint wasn't missing the subsequent events. I'm completely unfamiliar with Becker except that reading the article his wife and children live in Florida while the rap singer he was having an affair with was in New York.

With regards to the second case, something tells me there is more than you're reporting as well. The only English link I can find states that her problem was actually two newspapers which transposed her head onto that of a topless model in their publications. Is this what you termed her 'sex scandal' because frankly when you used the initial term I thought she must a done something like have an affair with a dead dog but if her complaint is they doctored photos of her to maker her appear to be posing nude that's a whole different story. http://www.ananova.com/news/story/sm_306614.html

Now, that article was printed in May of 2001. What has happened since then? If there was a trial in Texas I would have imagined that I could have found an english web site talking about it, I can't. Is this another case of much ado about nothing?

Also somewhat related, an American company is being sued in Australia for libel of an Australian citizen for an article put on the web on its server based in the US. Since the company does business in Australia though.... In other words, if there was a suit of a german company for libel of an american citizen then I would anticipate that the german company was doing some sort of business in the u.s.

No offense, but it sounds like you may have left out crucial facts about both cases.

 

At Laches:

To the Shawne-Fielding case: It was a sex-scandal in Switzerland and Germany. Which did not interest anyone outside of the two countries. So, I haven't found any English link.

The only-one concerning a part of the story was this (There's already a settlement with riniger):

http://news.bbc.co.uk/2/hi/europe/1921833.stm

To the suitcase in texas, I have found only German or French links:

http://www.rhetorik.ch/Aktuell/Aktuell_Apr_12_2003.html

In Short -> suit march 2003 by district Dallas court against Bertelsmann and Burda. Reasons: "defamation", "intended psychic damage" and "conspiracy". Fielding claims to have lost her child because of the alleged sex-scandal and her husband has lost his job.

(Legal terms are difficult to translate)

(Sidenote: Her Husband has lost his job because he's a moron and he should never have had the job in the first place)

Becker:

http://news.bbc.co.uk/2/hi/americas/1101470.stm

http://news.bbc.co.uk/2/hi/europe/1107803.stm

http://news.bbc.co.uk/2/hi/europe/1108344.stm

First fight in Florida, than agreement, than divorce in Munich, Now on friendly terms again (together aigain ?)

[ April 26, 2003, 22:28: Message edited by: Yago ]

 

First you were complaining about punitive damages. I said, if you don't want to be subject ot punis don't do business here. You said fine but the US is extending its jurisdiction over people it had no business over. As an example you offered Boris Becker, whose maintained a home in Florida, where his wife was residing, but ended up being divorced in Germany. I'd also note that he couldn't have been subject to punitive damages which you were complaining about earlier. So, 1) he was divorced in Germany and, 2) even if there had been a trial in florida where his wife was living in the home they owned he wouldn't have been subject to punitive damages which is what you were complaining about. Interesting about all the articles you listed is that in none of them was there a complaint of a lack of jurisdiction or improper venue.

Your other example is about a case filed againt a massive media company last month. We have no idea where this will go yet. It's jumping the gun much like people jumped the gun with the McDonald's obesity cases.

Neither example is particularly compelling.

EDIT -- a request, when you go back and edit previous posts in response to later posts to change your argument you make the guys who post later to your initial post look like dolts, I'm requesting that you just post again so that the conversation flows and people know what the hell is going on.

 

K

I was complaining over punitive damages because their a bad idea in the first place. But than I stated, Americans can do in America what Americans want.

Extending jurisdiction over people it has no business over. Yes, that's the problem. As I stated before, I wish Europeans would have more cojones and would put a huge stop-sign in the middle of the atlantic.

Yes, which is quite interesting. They started the case in Florida. The case had a huge attention in Germany (and German TV, which I am able to receive). But Babs Becker is a half German, half American, her name was "Feltus", if I am not mistaken. She's a fluent German-speaker and has a career in Germany. So, going back to Germany was always her plan anyway. Prolonging the case in Florida could have made her comeback to Germany problematic.

1. General problem: That's a German case, meaning most sources on the net relating to it are German.
2. The link from the BBC is an account from a third country.
3. In one of the BBC articles, the call the house in Florida the "Family-home", in another the "Holiday-Home". Now, it's not unusual to have an holiday home in Florida. But as I stated, they lived in Europe and paid there taxes in Europe, not in Florida.


4. I have only found German links concerning the dispute over American juisdiction:

http://rhein-zeitung.de/on/00/12/21/topnews/boris.html

... Barbara demands full-custody (??) of the children. Her husband wants to dispute US-Jurisdiction.

Media says Barbara is planning to stay in the USA with her sons.

-> The sons grew up in Germany

On wednesday it became public, that in Januray will be decided, if the case is held in a Miami court or in a Munich court. A speaker of Judge Gross said, that the lawyers of the pair will be heard on the 8. January. Afterwards will George Gross decide, if he has jurisdiction over the case Becker versus Becker. (End)

So the jurisdiction question has not been decided, because the Beckers reached a Settlement. So the hot potatoe has been avoided. But it was very tight.

In my post above, I quoted an excerpt from one of the BBC articles, that Boris' lawyers had the stance, that the children were kidnapped. Because Babs took them to Florida. But international right demands that the Children remain in the country they lived in, until the custody-question is decided.

The other case will be interesting. In the German-Link I put in the post above, there's a Law-professor of Berne, saying that it's likely that the Dallas court will take the case. Because both German companies have business in the USA.

My problem is, it's a Swiss/German case, it should only be decided by Swiss/German courts.


Edit: Found an English link:

http://fact.on.ca/news/news0101/re010104.htm

[ April 27, 2003, 01:07: Message edited by: Yago ]

 

Chaps, I think we're a touch OT here as I've started plenty threads to discuss the merits of tort case awards / punitive damages in the past. I don't mind discussing it, but the theme here was intended to be the ABA proposals.

Laches, of course you have a point when you say that laypeople purporting to be able to and advertising legal advice should be regulated. Effectively they're passing themselves off as legal experts which they are unlikely to be.

However, the proposal, and of course it is just that at the moment, is much too wide. I'm particularly struggling with the concept of lawyers doing personal taxation in the first place, leave alone having some sort of monopoly on it. In the UK for taxation issues you would only use a lawyer if you were defending a criminal case of tax evasion. Anything else would be dealt with in general by accountants or tax specialists (who would generally have an accountancy, rather than law background).

The key in the proposal is the fact that it attempts to make it illegal - yes, they are looking for a criminal law to protect the profession - for anyone not a lawyer to give any legal advice. There is a big step from advertising legal services you may not be qualified to give, and advising on filling in for example a tax return, or a preprinted legal document.

 

Heh, I think it is a bit funny that you're struggling with the concept of attorneys doing personal taxes. Up until fairly recent history in the US if you wanted your taxes done you went to an attorney, there weren't accountants for us common folk. Lots of lawyers made their living this way. (recent as in the last...oh, 40 years or so.) Accountants came in later. Maybe it was different overseas. Rather than being an attempt to move in on others, it is really a protectionist move as they see it.

I do think it is overbroad. But, I don't think it is any more overbroad than the sort of thing you have coming from any other professional or trade lobbyist group. It's what they do. MD professional groups are demanding that there be unreasonably low caps on damages, and for their chiropractors (yep, chiropractors are part of the medical association lobbyist groups) asking for unreasonable lien laws. The teacher's unions ask for unreasonable protectionist laws. Ditto with pharmacists etc. It's what they do. They act unreasonably to advance their particular groups interests and then it evens out in the wash.

The only difference I see is that lawyers are under a greater deal of scrutiny.