4 ms·
Do you have any sort law background? Your knowledge is certainly above the general citizen, but the application of the law is off. 1. Safer alternative design
by micks56 17y ago
Do you have any sort law background? Your knowledge is certainly above the general citizen, but the application of the law is off.
1. Safer alternative design is only recognized in a minority of US jurisdictions. Warning defects is a separate cause of action from design defects. The Apple warning w/r/t iPods is precisely written as it is because of warning defect laws across the country. Also, w/r/t warning defects, there is no duty to warn of open and obvious defects.
2. w/r/t class actions, damages aren't multiplied by products sold, but rather by injured plaintiffs. There are no surprise sources of liability. The causes of action are mechanical and slow moving.
3. Yes, you are correct w/r/t pleadings. But a pleading is only the first step in filing a lawsuit. Once that is filed, the facts and evidence starts getting passed around. Also see Fed R. Civ. P Rule 12(b)(6) (motion to dismiss) and Rule 56 (summary judgement). The parties vigorously fight between themselves to rid of the lawsuit versus keep it going. And both Defendants and Plaintiffs drag on lawsuits for various tactical reasons.
4. Look to the State Legislatures for the law updates, not the Courts. California has an "Unfair Competition Law" that gives expanded causes of actions, and was created by the Legislature, not the courts. Massachusetts has a similar statute (MGL 93A Unfair and Deceptive Business Practices). It is the legislatures moving to protect their citizens, not the Courts.
Yes, you have to prove cause and effect. Lawyers call it proximate cause and it is an essential element in most (perhaps all) causes of action.
w/r/t forum shopping, I guess. There are specific rules on where a suit may be filed. To move to another jurisdiction you need a plaintiff in that jurisdiction. The Apple case was in California because the plaintiff and Apple are in California.
I skipped over some other stuff but those are the big areas that caught my eye.
And yes, my viewpoint is shaped by being a person close to becoming a lawyer.
- evgen 17y agoA quick check to his profile would have shown you that grellas is a lawyer (I guess that counts as a "law background" :) although one who is probably several years removed from actually getting his hands dirty in torts or direct litigation I would guess.
- grellas 17y agoThanks for your clarifications on products law (I am not a tort lawyer). On the other hand, I am an experienced litigator and the points I made about litigation process, etc. are spoken from real-world experience going back many years and including a federal clerkship and Big Law tenure where I had lots of experience in seeing how class actions worked in practice. I have simplified those points in order to avoid legal technicalities and have instead tried to express them in terms of their practical effect (which, in the world of class-action lawyering, has much more to do with legal shakedowns than it does with formalities such as proximate cause or actual injuries suffered by individual plaintiffs). Would be happy to talk further offline if you like - just email me.
- micks56 17y agoFirst, I am sufficiently embarrassed that I neglected to check your profile. I slightly remembered your name, but could not remember why. Then I refreshed my recollection by viewing your profile and remember your Startup Law 101 posts. I tend to side with letting the courts do their job. Yes, legal shakedowns certainly occur. I am more worried about smaller companies being affected than large ones, though. But that worry comes from much less legal experience than you. Is it too idealistic to think that Rule 11 limits the scope and frequency of legal shakedowns?
- grellas 17y agoToo idealistic, in my judgment, to see Rule 11 as having that effect (for others, this is a rule generally allowing federal courts to impose sanctions for frivolous or bad faith conduct in litigation). That said, I am not hostile to courts and would be the first to say that they serve us well on many fronts - that is what saddens me all the more about the way litigation can be so ill-used in our society as well.
- jacquesm 17y agoLike any other tool litigation can be used or abused. It's unfortunate that a lot of abuses have gone unpunished and that more people (and companies) are taking these bad examples as 'the way to do it' because everybody else is doing it too. This is not a purely American thing, though I would definitely contend that the United States has seen some of the worst excesses of this.