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mr_luc 11y ago
I found this to be the most informative and relevant response to the questions posed. Of course, it's frustrating to see the aspects of this situation that are (practically) unsolvable. But one item jumped out that I'd be interested in knowing more about: > Nissan Motor was ordered to reimburse Mr. Nissan only $52k in legal fees, of the over $3 million Mr. Nissan was forced to spend What are the reasons for that disparity? Would fixing the way we calculate those legal fees help to fix these kinds of abuses?
- mattlutze 11y ago
  Well, in general, loser-pays provides some protection from frivolous and opportunistic lawsuits. Though, it does then put a greater risk perhaps on the little guy if the smaller firm doesn't successfully defend.
  - sandstrom 11y ago
    Except it (mostly) doesn't exist in the US, but does in almost all other democracies. https://en.m.wikipedia.org/wiki/English_rule_(attorney%27s_fees) https://en.m.wikipedia.org/wiki/English_rule_(attorney%27s_f...
    - mattlutze 11y ago
      Indeed, that was my point in suggesting it as an opportunity for improvement.
  - mr_luc 11y ago
    To make that greater risk concrete, and play Devil's Advocate to my own query by thinking of the societal benefits of the current system: would that make it much riskier to sue, say, Big Tobacco? I understand that the American legal system is a bit unique when it comes to lawsuits, but I'm hampered by not understanding exactly how, and what the positives and negatives of that are.
    - mattlutze 11y ago
      Well, the risk comes when you don't have a strong footing for your suit. And I think that's the philosophy behind "loser pays". As I'm thinking about it, one of the other big benefits is at-risk speculation. Say I'm a small fish with a few hardware patents and I'm pretty sure Honeywell is infringing on them. Currently, I need to ask my good-for-what-I-can-afford attorney to have a look at it, then debate whether I have the cash on hand to take the suit, and figure out the economics of sustaining my business while I try to seek damages from Honeywell's wanton disregard for my IP. I have to do all this because I'll likely have to pay as I go unless I have a slam-dunk case, and even then, a lot of my winnings would go to the attorney if they'd foregone payment until verdict. In a loser pays system, there's a greater guarantee of payment if they win -- so it can be beneficial when the possible case looks good on the surface, to do some at risk research to determine its real viability. I can take that case, then, to a larger or more experienced firm because the economics of the win are advantageous to them. Hypothetically, it could help in that second way to level the pitch for the "underdog." As well, knowing I can take my case (or defense) to a larger firm who would be better protected from loss in an at-risk or deferred payment agreement, means that larger corporations will necessarily be dissuaded from the more frivolous or speculative suits they're wont to bring. Even for corporations with large litigation coffers, running a negative balance sheet will get a firm or legal team replaced.
BatFastard 11y ago
As someone who has gone thru this process, it is HORRIBLE. It distracts you constantly and upsets your life.
- Klathmon 11y ago
  Just reading that gave me anxiety. I can imagine as much as it would make my skin crawl, i'd cave at one of the first requests from a big company like that.
- FireBeyond 11y ago
  From one of my favorite movies, The Insider (http://www.imdb.com/title/tt0140352 http://www.imdb.com/title/tt0140352) about Big Tobacco and Dr Jeffrey Wigand: "I know what you're facing, Jeff. And, I think I know how you're feeling. In the Navy I flew A-6's off carriers. In combat, events have a duration of seconds, sometimes minutes. But what you're going through goes on day in and day out. Whether you're ready for it or not, week in, week out. Month after month after month. Whether you're up or whether you're down. You're assaulted psychologically. You're assaulted financially, which is its own special kind of violence because it's directed at your kids. What school can you afford? How will that affect their lives? You're asking yourself, "Will that limit what they may become?" You feel your whole family's future's compromised, held hostage. I do know how it is." Not to mention: "You fought for me? You manipulated me! Into where I am now - staring at the Brown & Williamson building, it's all dark except for the tenth floor. That's the legal department, that's where they fuck with my life!"
sandstrom 11y ago
I agree with all of the above. Another detail is the 'loser pays' principle[1], which (barely) exist in the US, but is prevalent in almost all other civilized countries. It's solve purpose is to dampen the effect of frivolous lawsuits, by making the instigator pay for the whole carouse (wasting other peoples time and wasting the legal system's time). [1] https://en.m.wikipedia.org/wiki/English_rule_(attorney%27s_fees) https://en.m.wikipedia.org/wiki/English_rule_(attorney%27s_f...
- drdaeman 11y ago
  But does it really solve the problem of bullying? I mean, BigCo sues you. They threaten you they have 100 attorneys they can get off the leash. Even if they're most obviously in the wrongs, you'll have to get somewhat matching manpower to thwart the pressure. And even if you win and BigCo pays for all of the mess, you need a very large sum of money while this isn't over. So, a barrier for justice is still there. (Not to say the only real winning side here are attorneys, because they're practically fed a giant amount of money.) And then there's a fear of "and what if I lose"...
  - cookiecaper 11y ago
    >And then there's a fear of "and what if I lose"... Which is not necessarily remote. In Ticketmaster v. RMG, the smaller company, which extracted non-copyrightable data from Ticketmaster's site, lost because the Court ruled that the momentary existence of a web page in RAM constituted an unauthorized copy. The real-world analog is claiming that an illegal copy is made every time a copyrighted work reflects against your retina. The only explanation for that kind of ruling is simple technological ignorance, but it's what we have to deal with. While the American system has safeguards in place to prevent it, you do have to ask yourself how badly a particular judge is going to want to offend a massive company that could potentially make him tons of money if they believe he's a reliable ally; if not through explicit corruption and bribery, through the possibility of a post-retirement relationship as a "legal consultant" or similar. What benefit does the judge get by favoring a tiny company that's probably not going to be around for more than a few years anyway v. favoring a megacorp that has practically infinite money to burn? Whatever the deterrents are, we do have to recognize that the natural incentive is to favor the larger company, and remain cognizant of that. We've seen a minor version of this happen with the Eastern District of Texas, which has become the go-to jurisdiction for patent trolls because they believe that judges that sit there are more sympathetic to their cases than other judges may be. The incentive exists for the circuit to encourage a "specialist" reputation, because they collect more filing fees that way, and the judges get more attention, which is a very valuable currency indeed.

cookiecaper 11y ago

>But does it really solve the problem of bullying? I think it's a hard problem to reorganize the system to prevent big corporate bullying. I think any potential solution would be pretty sweeping. One idea would be to require MegaCorp (defined maybe as $100m+ annual revenue) to pay the legal fees of the small defendant (defined maybe as <= $20m annual revenue). MegaCorp would have to bear this cost even if they won, meaning they could only sue little guys if it was really worth it. MegaCorp would pay the same amount they pay their attorneys into a trust managed by the court, which would allow the small defendant to select his own lawyers. This would ensure that both sides have equally-adequate representation. A second solution is to lower the cost of litigation in general, which would be accomplished by de-formalization of the system and greater local sovereignty. Why does it have to take 10 years and $5 million to have a dispute settled? Companies are already trying to make something like this the de facto legal system by forcing arbitration against their helpless victims; arbitration might not be bad in theory, but under the current practice, it's an unnerving prospect, since you're going into a black hole.

bryondowd 11y ago
I was thinking it would be effective to have a variation of your first solution. But rather than having special rules for big vs small cases, just have a rule that the instigator has to set aside money for the defendant, equal to it's own court and legal costs. Then, if they win, the defendant has to repay it (although if you are suing a tiny company, they may cease to exist after, leaving no means of collection). So, if MegaCorp sues Little Guy, Inc, and puts 5 mil into it's case, it has to stick another 5 mil into a trust account for Little Guy to use for defense. So, it better be willing to lose that much or be very certain about it's case, and Little Guy has nothing to worry about or any reason to cave unless there's a significant chance of losing, even with equal resources. Seems to me the defender should have an advantage in most cases.