31-10-2003 03:05									#31
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you know, that jelly must have tasted pretty bad.... unless it was flavoured....

"who has time to read directions these days"

rtfm. RTFM RTFM!

	31-10-2003 03:10									#32
	Lose 30 kilos (of popups)

*whew*

http://www.snopes.com/pregnant/jelly.htm

	31-10-2003 03:20									#33
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quote: Originally posted by MichaeltheGreat $300,000 for negligently or recklessly inflicted quadroplegia is ridiculous. Imagine spending 40 or more years of your life that way, for no reason other than the stupidity or recklessness of someone else, and getting a mere 20 dollars a day to "compensate" for all the experiences of life that you are forced to lose do to the actions of another. Economic loss is nothing - it's subject to all sorts of provability and debate, and in the end, does nothing to "compensate" you, it only sees that you would have had something approaching what you would have had anyway. And you can combine the two in nasty ways, for example, my brother never had a chance in litigation against the VA medical system (despite repeated hair-raising episodes of butchery) because what are the "economic losses" of a disabled veteran with psych problems? Nobody would hire him anyway, since he was a crippled vet with a screw loose, so his compensible economic value was very low. Capping certain types of lesser injury claims is one thing, but capping all types of pain and suffering claims, even when there's reckless or grossly negligent conduct resulting in severe injury, is just a subsidy to those who are reckless and grossly negligent. Personally, if that type of system was instituted, I'd be more inclined towards vigilantism.

Your point is well taken . . . NO AMOUNT of money can ever compensate a person for the pain, suffering and loss of amenities that come with a horrific injury. That was kind of the point the Supreme Court of Canada made in these cases. A trillion dollars would not fix things, no amount of money can . . . yet the court only can award money. Instead of going into the ever-escalating world of " how awful !" that leads to ever escalating awards, the court said lets come to an amount and just say thats it. The decision is actually pretty logical although you may disagree with its basic premises. I would prefer the amount was a bit higher but I have no problem with such an ultimate limit on something that is really, not capable of quantification.

As for 20 bucks a day . .. don't be cute here. Even invested at 5%, $300,000 nets more than that per day without touching the principal amount, and despite your brother's example, economic loss is compensable separately. Anyone such as myself with a horrific injury would do fine financially since I have proven and provable earnings. Even the unemployed are granted compensation based on their likely employment income. IN your brother's instance, while I may sympathyze, its not the tortfeasor's job to provide an income where it did not previously exist . . Their sole job is to make right, to the extent money can , for the loss caused by them . Taking care of a disabled vet is a societal/ governmental responsibility, NOT some tortfeasor.


You mention gross negligence . . . that is a separate topic and is not capped. Such awards are difficult to obtain but it is possible to get punitive or exemplary damages. These are unrelated really to the damage caused but are used to punish parties for exceptional bad conduct.


There is no subsidy here. What the court did was take away from the uncertainty of pain and suffering awards and institute some clarity. WE have avoided the situation where one court awards 200,000 for the same injuries that garnered 1 million in another court.

	31-10-2003 04:39									#34
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quote: Originally posted by DinoDoc Why not? The thread is about stupid lawsuits and this certainly qualifies.

If you've got the filing fee and can spring for service of process, you can sue me for directing those aliens to your house and molesting your teeth. That's not a fault of the system, because the court is not equipped (especially, since there's only one party's version of events anyway) to make judgments of fact or law right at initial filing, without evidence. That's a formula for corruption of the most extreme kind.

If I give you a hundred grand to go away, is that the fault of the legal system, or my own stupidity?

In the PM case, first thing I'd do is make a special appearance to file a motion to separate the defendants due to improper joinder. Unless the plaintiff's mother was a PM employee somehow involved in the manufacture of the cigarette, the causes of action against her, and the causes of action against PM, are already separate. If that motion failed at the local trial court, since it's a special appearance matter relating to jurisdiction over the defendent, there's an immediate right to appeal, since there's a question of law as to whether the court has a right to hear a case against that defendant. I should be able to keep the case tied up on appeal for a year or two without even filing an answer to the original complaint. That'll put a damper on the plaintiff's lawyer's enthusiasm.

Then I go through my lobbying and PR connections, and find somebody who owes me a favor, is deniably distant from PM, and owns (or is owed by) a good elected public servant in Texas, the state of. I call in my card, and set in motion a suggestion of concern about how whatever agency in Texas is responsible for child welfare is doing it's job. Imagine this poor girl, horribly burned because her mother leaves her in a car with a defective lighter that she's complained about in the past. "Oh, it wasn't the lighter, it was the burning cigarette I left on the seat when I illegally left my daughter in the car." Now that mommie dearest has the state all over her ass, she'll have a couple of other things on her mind. Now I need to find myself a zealous DA from the county she used to live in, and find a way to persuade him or her to move forward on a child endangerment charge.

And meanwhile, the suit against my client, PM, is still waiting it's initial hearing date on the matter of the improper joinder. That's how the system works.

	31-10-2003 05:17									#35
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quote: Originally posted by MichaeltheGreat If you've got the filing fee and can spring for service of process, you can sue me for directing those aliens to your house and molesting your teeth.

Probably not considering I'd get Rule 11'ed out the arse by any half sane judge. That didn't happen in this case.

Here's another amusing one closer to home for you.

	31-10-2003 05:28									#36
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quote: Originally posted by Flubber Your point is well taken . . . NO AMOUNT of money can ever compensate a person for the pain, suffering and loss of amenities that come with a horrific injury. That was kind of the point the Supreme Court of Canada made in these cases. A trillion dollars would not fix things, no amount of money can . . . yet the court only can award money. Instead of going into the ever-escalating world of " how awful !" that leads to ever escalating awards, the court said lets come to an amount and just say thats it. The decision is actually pretty logical although you may disagree with its basic premises. I would prefer the amount was a bit higher but I have no problem with such an ultimate limit on something that is really, not capable of quantification.

Since quadroplegia is valued so low, then I assume paraplegia or double amputation would be much lower - and something like being in excruciating pain due to back injuries (something I've had going for well over a decade now) would be considered almost trivial. It seems to me the "can't be quantified" argument has been distorted to a "don't hurt the tortfeasor, there's already been enough pain and suffering" bit.

quote: As for 20 bucks a day . .. don't be cute here. Even invested at 5%, $300,000 nets more than that per day without touching the principal amount, and despite your brother's example, economic loss is compensable separately.

At 5%, which isn't too easy to obtain here at the present time on a low risk, liquid basis, it would be a whopping 40 bucks a day. Unfortunately, interest earnings are taxable, and as I said, getting a safe, liquid five percent here isn't easy.

quote: Anyone such as myself with a horrific injury would do fine financially since I have proven and provable earnings. Even the unemployed are granted compensation based on their likely employment income. IN your brother's instance, while I may sympathyze, its not the tortfeasor's job to provide an income where it did not previously exist

There are a few aspects to this, at least in his instance. One, his disability was caused by the same entity that was the later tortfeasor, although a different bureaucratic incarnation. Using lack of income caused by military service disability, then delaying that disability award for 18 years of legal fights due to a desire to deny further factual bases for agent orange claims, then using that "income history" smacks of the worst kind of manipulation and injustice. But the Federal government is immune from liability for ****ing people up in military service, regardless of the reason, the VA is immune from any liability other than retroactive application of veteran's benefits (in the settlement, after 18 years, they agreed that date of disability was to be set at date of separation from service, but that no money was to be paid for retroactive benefits. The difference is that the going forward disability amount was based on an E-7's pay with 20 years service, not an E-4's pay with three years of service. For the 18 intervening years, it was "sorry Charlie, you shoulda gone to Canada."

If the jury is forced to consider lack of steady income for 18 years in earnings calculations, but has the leeway to make an award it feels is right on the pain and suffering side of things, then the jury has the flexibility to reach a just solution, as opposed to a technically correct one.

quote: . . Their sole job is to make right, to the extent money can , for the loss caused by them . Taking care of a disabled vet is a societal/ governmental responsibility, NOT some tortfeasor.

The tortfeasor was the United States of America, Department of Veterans Affairs. The medical malpractice issues were mooted by the subsequent killing of my brother due to further medical malpractice, then the issue became one of wrongful death, with past evidence of negligence, gross negligence and multiple independent instances of medical malpractice excluded, on the convenient grounds that they did not pertain to the issue of economic loss that is the basis of awards for wrongful death.

The "admissible" evidence was so skewed that we were not allowed to discuss the classified portion of his service record, Agent Orange, his history of denial of disability claims going back to 1971, or any pending dispute of the government claim that cause of death was non-service related. What was allowed to be presented to the jury was that he was in effect an unproductive bum who never bothered to hold down a job, that out of the goodness of their hearts, the VA took in this whiny no-account veteran, and that he shortly thereafter got cancer and died, while the VA nobly did all it could to save him, and now his ingrate family is trying to milk the government for a wrongful death claim so they can all live on easy street.

quote: You mention gross negligence . . . that is a separate topic and is not capped. Such awards are difficult to obtain but it is possible to get punitive or exemplary damages. These are unrelated really to the damage caused but are used to punish parties for exceptional bad conduct.

The "tort reform" movement in the US makes no such distinctions, and is purely an insurance company and corporate malfeasor's whore movement. The general goal is to limit all non-economic damages.

quote: There is no subsidy here. What the court did was take away from the uncertainty of pain and suffering awards and institute some clarity. WE have avoided the situation where one court awards 200,000 for the same injuries that garnered 1 million in another court.

I have no problems with minimums for all types of injuries, and maximums for non-severe, non-fundamentally life altering injuries. Beyond that, you establish a system where tortfeasors have relatively little to fear from a little occasional negligence, or taking the occasional safety shortcut, etc.

	31-10-2003 05:40									#37
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quote: Originally posted by DinoDoc Probably not considering I'd get Rule 11'ed out the arse by any half sane judge. That didn't happen in this case. Here's another amusing one closer to home for you.

You'd only get Rule 11'd if I filed the motions for it. A lot of defendant's lawyers like to perpetuate this crap too, so they always tell you how judges are hostile to pre-trial law and motion, and let's just answer and go through a huge amount of discovery, and wrack up those fees, before we tell you to settle.

It all comes down to this (from your link):

"When such lawsuits do arise, it is usually cheaper to settle than to fight the claim in court. The results are higher insurance premiums, medical bills, and other goods and services for the rest of us."

It's only cheaper to settle in isolation. If you consider the costs of a system that encourages frivolous lawsuits and quick jerkoff settlements, then you can see how grinding plaintiff's lawyers into the dirt and making them work for a living pays off in the long run. The courts are more hostile to frivlous cases, due to their increasing case load. Plaintiff's lawyers will tell their clients "95% of these cases get you and me ground into the dirt and you don't get a dime, while I have to stop supporting my mistress and take out a third mortgage on my vacation home, so I wont take this on a contingency basis" instead of the current "95% of these cases settle quickly, so let me explain our contingency fee structure." Plaintiff's lawyers would also have to carry large professional staffs, like real law firms, and have a high lawyer to support staff ratio, like real law firms, because their fleets of paralegals who can draft boilerplate tort complaints can't handle law and motion work and complex discovery.

I think of it as being like any other marketplace - just think of this as the tort litigation market. We don't want excessive regulation, high barriers to entry, or government mandated caps on results. We want a level playing field, where results are obtained for hard, successful work, and halfassed work leaves you unable to compete in the marketplace.

	31-10-2003 08:06									#38
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Many products, particularly chemicals, have labelling that says "It is a violation of Federal law to use this product in a way inconsistent with its labeling". Why is it you never hear of people being prosecuted on those grounds?

	31-10-2003 08:42									#39
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quote: Originally posted by MichaeltheGreat Unfortunately, in the US, each side pays costs and attorney's fees unless otherwise agreed by contract, or specifically addressed by statute.

That's the rule for attorney fees. Costs (certain specific expenses such as filing fees, jury fees, etc) are paid by the losing party.

	31-10-2003 09:19									#40
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Not in all states, IIRC, there's some difference both as to definition of "costs" and whether a prevailing party is entitled to costs.

	31-10-2003 09:23									#41
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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.

	31-10-2003 09:42									#42
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quote: Originally posted by MichaeltheGreat Unfortunately, in the US, each side pays costs and attorney's fees unless otherwise agreed by contract, or specifically addressed by statute.

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.

	31-10-2003 09:48									#43
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I like that new rule .

	31-10-2003 10:10									#44
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OK, here's one I worked on as an expert witness.

See In re New Orleans Train Car Leakage Fire Litigation,
795 So.2d 364 (4th Cir. 2001).

http://www.hhlaw.com/site/pdf/ACCA_Feature.pdf

Potential Liability: A Case Study
A 1987 hazardous materials release in Louisiana illustrates the potential liabilities that can arise and why it is important to address them beforehand in contracts. The release occurred when a flammable gas, which had leaked from a rail tank car, ignited and caused an enormous explosion on CSX tracks. A National Transportation Safety Board (“NTSB”) investigation concluded that the probable cause of the incident was the misalignment and subsequent tearing of an improperly installed gasket on the tank car’s bottom outlet. The NTSB found that the owner of the tank car, the 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. The fire caused thousands of nearby residents to be evacuated from their homes for 36 hours. Fortunately, no deaths or serious injuries occurred, and only limited property damage resulted from the release.

Despite these relatively modest losses, a jury awarded a record $3.4 billion in compensatory and mostly punitive damages. The original $2.5 billion punitive damage award imposed on CSX was reduced to $850 million on appeal and reportedly was settled for less than that amount. But this damage award was huge by any measure, especially considering that the NTSB had absolved CSX of any wrongdoing.

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.

Another favorite that I worked on was the spill of metam sodium, a herbicide, into the Sacramento River at Dunsmuir, California in 1991. Barbara Boxer (D-CA) filed a $1 bil suit claiming that Southern Pacific Railroad did not comply with federal regulations regarding the transportation of hazardous materials. The suit was thrown out of court because metam sodium was not considered a hazardous material at the time. (It is now)

	31-10-2003 10:17									#45
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You bolded the wrong part .

quote: 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.

quote: Despite these relatively modest losses, a jury awarded a record $3.4 billion in compensatory and mostly punitive damages.

quote: The original $2.5 billion punitive damage award imposed on CSX was reduced to $850 million on appeal and reportedly was settled for less than that amount.

So, as usual practice, the damage award was reduced substantially on appeal. Also punitive damages mean don't do this again. The next time it could be WAAAY worse, even if the damages this time weren't that horrible.

I see nothing wrong with the case you cited.

quote: Another favorite that I worked on was the spill of metam sodium, a herbicide, into the Sacramento River at Dunsmuir, California in 1991. Barbara Boxer (D-CA) filed a $1 bil suit claiming that Southern Pacific Railroad did not comply with federal regulations regarding the transportation of hazardous materials. The suit was thrown out of court because metam sodium was not considered a hazardous material at the time. (It is now)

What was wrong with that decision? The case was thrown out. Unless you think it was wrong that it was thrown out because metam sodium should have been characterized as a hazardous material at the time of trial?

	31-10-2003 10:26									#46
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quote: Originally posted by Imran Siddiqui You bolded the wrong part . quote: 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.

	31-10-2003 10:40									#47
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quote: 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.

	31-10-2003 10:47									#48
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quote: 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.

	31-10-2003 10:47									#49
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quote: 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.

	31-10-2003 11:52									#50
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quote: 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.

	31-10-2003 12:16									#51
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quote: 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.

	31-10-2003 12:42									#52
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quote: 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.

	31-10-2003 12:45									#53
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quote: 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.

	31-10-2003 19:31									#54
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quote: 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.

	31-10-2003 21:21									#55
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quote: 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.

	31-10-2003 21:25									#56
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quote: 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

	31-10-2003 21:43									#57
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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.

	31-10-2003 22:06									#58
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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.

	31-10-2003 22:35									#59
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quote: 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.

	01-11-2003 01:33									#60
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quote: Originally posted by Imran Siddiqui quote: 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