11 ms·

People will mention the problem with patents but I see another, perhaps bigger, problem: We do not have equal access to our judicial system in the United State

People will mention the problem with patents but I see another, perhaps bigger, problem: We do not have equal access to our judicial system in the United States. If you have money, you have the power to legally hold people with less over a barrel. That exploitable inequality is poison for a well functioning society. That is the problem that needs solving.

distances 10y ago
"Loser pays" would go a long way, I think. Not being that familiar with the US system, what's the reasoning not to have this?
- NTripleOne 10y ago
  Some people would make a lot less money.
- teej 10y ago
  It's called the English Rule. People argue that implementing it could disincentivize people bringing forth valid cases and that it could lower the liklihood of settling, increasing legal and court costs for cases that do go through. I don't really have an opinion either way, those are just the common arguments against it.
  - Silhouette 10y ago
    They're common arguments, but the predicted falling skies don't happen very often in practice. Meanwhile, there is far less of a problem with barratry under loser pays than the US system seems to have.
- saint_fiasco 10y ago
  If loser pays, poor people would be discouraged from even attempting to sue rich people. Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.
  - kefka 10y ago
    It could be done that it is not loser pays by default. Instead, if a case is won, and the case was deemed frivolous, only then could loser-pays be enacted. But it still doesn't solve the idea that the "Law is more equal the more money you have." .
    - brianwawok 10y ago
      This is essentially how it works today, from my understanding. If you lose and your suit was 100% without merrit, you can be sued for lawyer fees. From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.
      - igravious 10y ago
        “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.
  - merpnderp 10y ago
    This only favors rich people when the case is questionable. So it slightly favors them. The current situation massively favors rich people.
  - jules 10y ago
    This comes up every single time, but it remains false. Loser pays does not mean that the loser has to pay a gigantic amount for the opponent's extremely expensive lawyers. Loser pays means that the judge determines what is a reasonable amount for the legal fees. Often the amount you have to pay for your opponent's lawyers is limited to what you paid for your own. So unless you hire extremely expensive lawyers yourself, you won't have to pay a huge amount if you lose. If a party wants a much more expensive defence they have to pay for that extra cost regardless of whether they win. Almost every country except the United States uses this system.
- macspoofing 10y ago
  It deincentives those who don't have deep pockets from asserting their rights through the judicial system.
- c3534l 10y ago
  You have that in some cases. My parents just went through that. A complete nonsense legal case (the other person stole tens of thousands of dollars in property and then sued them for demanding it back and spreading lies that the property was stolen from them). In the end, the judge ruled my parents were absolutely in the right and demanded court costs be paid for. Except, you know, that person didn't have any money and a nasty, multi-year long lawsuit is emotionally and financially devastating. There are also "anti-slap" laws sometimes where you can demand court costs paid for if the other person was suing you to try to suppress your freedom of speech. I'm sure that something could be done legally to curtail this atrocious behavior, but as the guy in the video mentioned, congress seems unwilling to take up the subject.
- clavalle 10y ago
  The one major pitfall of 'loser pays' is that it creates greater risk for legitimate complainants that might still lose. It is less direct but still favors entities that can absorb that risk. Even so, I think you are right and it could be helpful especially if there is some 'legitimacy threshold' that must be crossed before it is invoked to keep the actual cases that need to be heard and judged by legal experts to be teased apart fairly from being quashed prematurely.
- mikeash 10y ago
  Loser pays means that when an ridiculous East Texas judge and jury decide that a patent troll's claim is justified, the victim will not only have to pay damages and their lawyers, but the troll's lawyers too.
  - distances 10y ago
    To be fair, I think this mistake in the US judicial system should be fixed separately.
    - mikeash 10y ago
      The overall point is that there will always be injustice, and loser pays can easily magnify it rather than reducing it. Even if you fix East Texas, there will be many others. I'm sure you can construct it such that there's a net gain, and maybe even a simple "loser always pays" system qualifies, but it's tough to figure out. In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
      - Silhouette 10y ago
        In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
        mikeash 10y ago
        Then I guess either that's not what people mean when they say that the US should adopt a "loser pays" system, or they're unaware that the US already does this.
- ogreveins 10y ago
  As long as it's no more than the price of the cheaper legal team this method would work. That way poorer people who have been wronged are not heavily deterred from filing suit.
- DocG 10y ago
  Also, depositing 10% of the sued ammount would clean the place right up and bring ammouts to a more reasonable level. If I am correct, this is how it works in my country.
cinquemb 10y ago
But in all honesty, I do not see things changing anytime soon with regards to what you mention as being a bigger problem in the US (that I've personally experienced when going up against facebook without trying to spend a fortune in civil court). I do see people taking advantage of legal systems in other countries in order to do other behaviors and applying a legal arbitrage of sorts agaisnt another legal system (i.e scihub/libgen vs elsevier), so maybe this will become more prevalent as time goes on as the technical means to do so becomes more available.
rhino369 10y ago
It's actually the opposite. These patents trolls are typically very small operations suing massive corporations. They aren't rich guys screwing the little guy. It's the little guy screwing whoever he can. These little guys have too much access to the legal system. That's why it's hard to clamp down on. Nobody wants to make it so only big guys can have access to the legal system.
- HillaryBriss 10y ago
  With the added wrinkle in this particular case that the patent troll is also suing a bunch of little guys who decided to use Google Play Store.
  - rhino369 10y ago
    Sounds like they are suing whoever they can including Minecraft which isn't a small fish. There is a form of patent trolling that only goes after small guys. But they'd avoid actually litigating the patent and just push a settlement. They'd never take it to trial because little guys can't pay out enough to justify the cost of a patent trial. That form is basically extortion. They ask for a small sum of money to just go away.
    - HillaryBriss 10y ago
      > They ask for a small sum of money to just go away. Outrageous. Surprised there isn't a more meaningful response from Google.
- tanker 10y ago
  You identified a separate problem from the parent post rather than refuting it. #1: Big corporations can push small guys out of business by tying up their products in patent disputes. #2: Patent trolls can bleed corporations big and small while producing nothing of value. These problems are specific to the patent industry. Are there similar problems in other areas of the law? If so, we may be able to identify and try to solve the larger problem. If not, we just need to focus on patent reform which is an easier problem.
thegasman 10y ago
>We do not have equal access to our judicial system in the United States. I agree, but I think we can be more specific. Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things. Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement. So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent? Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.
- stormbrew 10y ago
  An interesting thought experiment along the lines of resolving this inequality is making it so that sides can only fund their civil case through a fund that both sides contribute to but both sides get an equal share. This means in order to frivolously sue someone, you have to be willing to fund their effort to defend against you. It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.
  - noir_lord 10y ago
    That's a genuinely brilliant idea! The ramifications on corp to corp lawsuits would be amazing.
  - rms_returns 10y ago
    A brilliant idea! I hope this actually gets implemented some day in a legal system of any country.
  - knodi123 10y ago
    "Hi, yes, I'd like to sue Apple for millions, and since I'm an unemployed armchair lawyer, I can make sure it takes a long while and a lot of tedious aggravation to beat me. Also, since I'm suing pro se, Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial. Or, you know, I'd be happy for Apple to just give me $100,000 to settle." Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund. Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.
sheepleherd 10y ago
| We do not have equal access to our judicial system in the United States. If you have money, you have the power... Your POV that money distorts and helps determine winners, while seeming so prima facie obvious, does not come close to getting to the real problem. I know this because I have money and I've spent well over a million dollars on attorneys in the last decade and I got very little in the way of ... not justice, very little in the way of consideration of the core legal questions in each case; in fact, I don't even know how the interesting core legal questions would have been resolved, the courts completely dodged them; and along the way, I saw a vast amount of phony posturing, amplification of minor details, and outright lying and manipulation of the legal system, mostly by attorneys; and the judges eat it up, because they too are attorneys. (and BTW, when a judge sees an unsophisticated indigent defendant, they actually do bend over backward to help them, say a confused tenant who does not pay rent is most usually given many many more chances.) To put it into the context of this guy's patent rant: my point would be, there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not. The "right/just" answer would be found more quickly and more cheaply and more rationally if the judge would simply decide that first in a non-binding way, like "from what I know so far, here's the way this is tilted". Then after that, if the losers wanted to spend money to present a stronger case they could, and the judge could say "warmer...warmer... colder". Then after all that, if you want to try to change the thing on a technicality like "yeah but you didn't serve the notice the right way", then the court would hear that. The way courts decide things is to completely front-load all these arcane minor points, and it has the effect of squeezing the shit out of the litigants to force them to settle. "You think you have a legal dispute that's worth this much? I'll give you dispute resolution that costs more and much of your life. Now do you want to settle? Don't test me, as a judge I'm a former attorney, we win at this game. Now do you want to settle?"
- clavalle 10y ago
  You are right. Having money equips someone to at least be able to put up a fight to reach a conclusion but that is not the heart of the issue. Whether you have money or not the real problem is the threat of loss due to the /process/ as opposed the merits and likely result of the case. That is the problem that needs to be solved. I'm not saying I know how to remove the expense of the process out of the equation but that is what needs to be done. Your suggestion is a good one. If the result itself is clearer earlier it would take some of the power out of the threat of expensive process.
steven2012 10y ago
The other side of that coin is that if you don't have a lot of money then you most likely won't get sued.
js471 10y ago
I complained about a corporation that was breaking the law in an online forum. They sued me for defamation, saying flatly that they had no dealings whatsoever in the accused activity. Shortly after they sued someone else in the same state claiming that, in the process of the same illegal activity, which they described in detail, some other party was not acting in good faith. I ask my lawyer "how in America in 2016 can they make two blatantly contradictory lawsuits?" The lawyer told me "This is a pissing contest you don't want to be involved in. You should settle ASAP". So I paid my life savings and tried to move on.
dragontamer 10y ago
Or maybe its just a problem with the East Texas court. Almost all bad patent issues resolve from this court. A ton of them are appealed successfully. It doesn't matter how fairly the laws are written if the judges presiding over them are assholes.

distances 10y ago

"Loser pays" would go a long way, I think. Not being that familiar with the US system, what's the reasoning not to have this?

NTripleOne 10y ago
Some people would make a lot less money.
teej 10y ago
It's called the English Rule. People argue that implementing it could disincentivize people bringing forth valid cases and that it could lower the liklihood of settling, increasing legal and court costs for cases that do go through. I don't really have an opinion either way, those are just the common arguments against it.
- Silhouette 10y ago
  They're common arguments, but the predicted falling skies don't happen very often in practice. Meanwhile, there is far less of a problem with barratry under loser pays than the US system seems to have.
saint_fiasco 10y ago
If loser pays, poor people would be discouraged from even attempting to sue rich people. Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.
- kefka 10y ago
  It could be done that it is not loser pays by default. Instead, if a case is won, and the case was deemed frivolous, only then could loser-pays be enacted. But it still doesn't solve the idea that the "Law is more equal the more money you have." .
  - brianwawok 10y ago
    This is essentially how it works today, from my understanding. If you lose and your suit was 100% without merrit, you can be sued for lawyer fees. From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.
    - igravious 10y ago
      “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.
- merpnderp 10y ago
  This only favors rich people when the case is questionable. So it slightly favors them. The current situation massively favors rich people.
- jules 10y ago
  This comes up every single time, but it remains false. Loser pays does not mean that the loser has to pay a gigantic amount for the opponent's extremely expensive lawyers. Loser pays means that the judge determines what is a reasonable amount for the legal fees. Often the amount you have to pay for your opponent's lawyers is limited to what you paid for your own. So unless you hire extremely expensive lawyers yourself, you won't have to pay a huge amount if you lose. If a party wants a much more expensive defence they have to pay for that extra cost regardless of whether they win. Almost every country except the United States uses this system.
macspoofing 10y ago
It deincentives those who don't have deep pockets from asserting their rights through the judicial system.
c3534l 10y ago
You have that in some cases. My parents just went through that. A complete nonsense legal case (the other person stole tens of thousands of dollars in property and then sued them for demanding it back and spreading lies that the property was stolen from them). In the end, the judge ruled my parents were absolutely in the right and demanded court costs be paid for. Except, you know, that person didn't have any money and a nasty, multi-year long lawsuit is emotionally and financially devastating. There are also "anti-slap" laws sometimes where you can demand court costs paid for if the other person was suing you to try to suppress your freedom of speech. I'm sure that something could be done legally to curtail this atrocious behavior, but as the guy in the video mentioned, congress seems unwilling to take up the subject.
clavalle 10y ago
The one major pitfall of 'loser pays' is that it creates greater risk for legitimate complainants that might still lose. It is less direct but still favors entities that can absorb that risk. Even so, I think you are right and it could be helpful especially if there is some 'legitimacy threshold' that must be crossed before it is invoked to keep the actual cases that need to be heard and judged by legal experts to be teased apart fairly from being quashed prematurely.
mikeash 10y ago
Loser pays means that when an ridiculous East Texas judge and jury decide that a patent troll's claim is justified, the victim will not only have to pay damages and their lawyers, but the troll's lawyers too.
- distances 10y ago
  To be fair, I think this mistake in the US judicial system should be fixed separately.
  - mikeash 10y ago
    The overall point is that there will always be injustice, and loser pays can easily magnify it rather than reducing it. Even if you fix East Texas, there will be many others. I'm sure you can construct it such that there's a net gain, and maybe even a simple "loser always pays" system qualifies, but it's tough to figure out. In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
    - Silhouette 10y ago
      In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
      - mikeash 10y ago
        Then I guess either that's not what people mean when they say that the US should adopt a "loser pays" system, or they're unaware that the US already does this.
ogreveins 10y ago
As long as it's no more than the price of the cheaper legal team this method would work. That way poorer people who have been wronged are not heavily deterred from filing suit.
DocG 10y ago
Also, depositing 10% of the sued ammount would clean the place right up and bring ammouts to a more reasonable level. If I am correct, this is how it works in my country.

cinquemb 10y ago

But in all honesty, I do not see things changing anytime soon with regards to what you mention as being a bigger problem in the US (that I've personally experienced when going up against facebook without trying to spend a fortune in civil court). I do see people taking advantage of legal systems in other countries in order to do other behaviors and applying a legal arbitrage of sorts agaisnt another legal system (i.e scihub/libgen vs elsevier), so maybe this will become more prevalent as time goes on as the technical means to do so becomes more available.

rhino369 10y ago

It's actually the opposite. These patents trolls are typically very small operations suing massive corporations. They aren't rich guys screwing the little guy. It's the little guy screwing whoever he can. These little guys have too much access to the legal system. That's why it's hard to clamp down on. Nobody wants to make it so only big guys can have access to the legal system.

HillaryBriss 10y ago
With the added wrinkle in this particular case that the patent troll is also suing a bunch of little guys who decided to use Google Play Store.
- rhino369 10y ago
  Sounds like they are suing whoever they can including Minecraft which isn't a small fish. There is a form of patent trolling that only goes after small guys. But they'd avoid actually litigating the patent and just push a settlement. They'd never take it to trial because little guys can't pay out enough to justify the cost of a patent trial. That form is basically extortion. They ask for a small sum of money to just go away.
  - HillaryBriss 10y ago
    > They ask for a small sum of money to just go away. Outrageous. Surprised there isn't a more meaningful response from Google.
tanker 10y ago
You identified a separate problem from the parent post rather than refuting it. #1: Big corporations can push small guys out of business by tying up their products in patent disputes. #2: Patent trolls can bleed corporations big and small while producing nothing of value. These problems are specific to the patent industry. Are there similar problems in other areas of the law? If so, we may be able to identify and try to solve the larger problem. If not, we just need to focus on patent reform which is an easier problem.

thegasman 10y ago

>We do not have equal access to our judicial system in the United States. I agree, but I think we can be more specific. Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things. Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement. So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent? Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.

stormbrew 10y ago
An interesting thought experiment along the lines of resolving this inequality is making it so that sides can only fund their civil case through a fund that both sides contribute to but both sides get an equal share. This means in order to frivolously sue someone, you have to be willing to fund their effort to defend against you. It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.
- noir_lord 10y ago
  That's a genuinely brilliant idea! The ramifications on corp to corp lawsuits would be amazing.
- rms_returns 10y ago
  A brilliant idea! I hope this actually gets implemented some day in a legal system of any country.
- knodi123 10y ago
  "Hi, yes, I'd like to sue Apple for millions, and since I'm an unemployed armchair lawyer, I can make sure it takes a long while and a lot of tedious aggravation to beat me. Also, since I'm suing pro se, Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial. Or, you know, I'd be happy for Apple to just give me $100,000 to settle." Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund. Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.

sheepleherd 10y ago

| We do not have equal access to our judicial system in the United States. If you have money, you have the power... Your POV that money distorts and helps determine winners, while seeming so prima facie obvious, does not come close to getting to the real problem. I know this because I have money and I've spent well over a million dollars on attorneys in the last decade and I got very little in the way of ... not justice, very little in the way of consideration of the core legal questions in each case; in fact, I don't even know how the interesting core legal questions would have been resolved, the courts completely dodged them; and along the way, I saw a vast amount of phony posturing, amplification of minor details, and outright lying and manipulation of the legal system, mostly by attorneys; and the judges eat it up, because they too are attorneys. (and BTW, when a judge sees an unsophisticated indigent defendant, they actually do bend over backward to help them, say a confused tenant who does not pay rent is most usually given many many more chances.) To put it into the context of this guy's patent rant: my point would be, there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not. The "right/just" answer would be found more quickly and more cheaply and more rationally if the judge would simply decide that first in a non-binding way, like "from what I know so far, here's the way this is tilted". Then after that, if the losers wanted to spend money to present a stronger case they could, and the judge could say "warmer...warmer... colder". Then after all that, if you want to try to change the thing on a technicality like "yeah but you didn't serve the notice the right way", then the court would hear that. The way courts decide things is to completely front-load all these arcane minor points, and it has the effect of squeezing the shit out of the litigants to force them to settle. "You think you have a legal dispute that's worth this much? I'll give you dispute resolution that costs more and much of your life. Now do you want to settle? Don't test me, as a judge I'm a former attorney, we win at this game. Now do you want to settle?"

clavalle 10y ago
You are right. Having money equips someone to at least be able to put up a fight to reach a conclusion but that is not the heart of the issue. Whether you have money or not the real problem is the threat of loss due to the /process/ as opposed the merits and likely result of the case. That is the problem that needs to be solved. I'm not saying I know how to remove the expense of the process out of the equation but that is what needs to be done. Your suggestion is a good one. If the result itself is clearer earlier it would take some of the power out of the threat of expensive process.

steven2012 10y ago

The other side of that coin is that if you don't have a lot of money then you most likely won't get sued.

js471 10y ago

I complained about a corporation that was breaking the law in an online forum. They sued me for defamation, saying flatly that they had no dealings whatsoever in the accused activity. Shortly after they sued someone else in the same state claiming that, in the process of the same illegal activity, which they described in detail, some other party was not acting in good faith. I ask my lawyer "how in America in 2016 can they make two blatantly contradictory lawsuits?" The lawyer told me "This is a pissing contest you don't want to be involved in. You should settle ASAP". So I paid my life savings and tried to move on.

dragontamer 10y ago

Or maybe its just a problem with the East Texas court. Almost all bad patent issues resolve from this court. A ton of them are appealed successfully. It doesn't matter how fairly the laws are written if the judges presiding over them are assholes.