5 ms·

The only way out is "loser pays, always, period". Don't have a strong case with risk of losing? Don't go to court! Have no money but a very strong case? Good.

The only way out is "loser pays, always, period". Don't have a strong case with risk of losing? Don't go to court! Have no money but a very strong case? Good. Go to court, you'll get your cost back if/when you win. That alone would end many of the - shall we say - speculative lawsuits.

Kaizyn 11y ago
What about cases where an individual or small business has been wronged by a big corporation? Then Big Corp. can simply intimidate them into not going to court because of the risk of losing and having to pay the legal fees.
throwawaykf05 11y ago
This trivializes the complexities and uncertainties involved in many lawsuits. I know someone who was a juror on a case where the entire jury agreed that real financial harm was done to the plaintiff, but could not return a verdict awarding any damages because of how certain business relations were structured and how the relevant laws applied to them.
- mullingitover 11y ago
  As a juror, you're free to return any verdict you like. Here's the list of juries who suffered consequences for returning the wrong verdict:
  - themartorana 11y ago
    I read this and wondered it if we're true so I did minimal research. It is, but only if you believe the verdict you are returning to be true. Which is a small but important detail. "Because of the importance of preventing undue influence on a jury, jury tampering (like witness tampering) is a serious crime, whether attempted through bribery, threat of violence, or other means. Jurors themselves can also be held liable if they deliberately compromise their impartiality." http://en.m.wikipedia.org/wiki/Jury http://en.m.wikipedia.org/wiki/Jury
  - joshuapants 11y ago
    How do you establish what a wrong verdict is? Another jury? And then a jury auditing that jury?
    - vacri 11y ago
      This is the basis of 'jury nullification'. You can't hold a jury responsible for returning a 'wrong' verdict - that's why they're there in the first place.
  - throwawaykf05 11y ago
    This also oversimplifies how things work. Typically what happens in the US is, the judge presents the jury a list of mostly Y/N questions that is essentially a flow chart, which they must answer. This list is determined based on the arguments and evidence provided, and something that the judge works with both, the plaintiff and defense lawyers, to draft. Jurors cannot deviate from that flowchart. For instance, there may be only one set of questions to which you must answer Yes or No to reach the question that says "What damages do you award?" But if your answers do not lead you down to the conclusion that you'd like, too bad, the law and the facts don't support your preference. Juries could return any verdict that is not supported by the instructions, but I'd guess that is grounds for a mistrial.
- rayiner 11y ago
  Most lawsuits aren't lost on what people might think of as "on the merits." Statutes of limitations, federal preemption of state laws, etc. Defendants get off on technicalities all the time--that's the bread and butter of defense lawyers. And even when you lose on the merits, that doesn't mean there isn't any "there" there. I think the Ellen Pao lawsuit is a good example. I think, based on the evidence that came out, the jury decided correctly. But there was clearly enough misconduct to create justification for a lawsuit to dig into what really happened.
mejari 11y ago
You'd be surprised how hard it is to convince people to risk a 10-20% chance of losing literally everything you have in order to sue. Even with the strongest case no litigation is a sure thing, and if being unlucky in your case means your business ceases to exist no one is going to take that risk, no matter how right you are about your case.
spacemanmatt 11y ago
I can't agree at all with this profound simplification of a significantly complex topic.
fiatmoney 11y ago
"Speculative" lawsuits are an intentional feature of the legal system. That is why, after a lawsuit is filed (which requires a somewhat lower standard of proof), they allow for the process of "discovery", where you can subpoena for records you don't already have that may prove (or disprove) your case.
- true_religion 11y ago
  Intentional does not always mean good. I'd argue that the total damage to society done by allowing speculative lawsuits where the intention is just to scare or defame someone into settling, by far outweighs the benefit done by also allowing speculative lawsuits done for more noble purposes.
  - harryh 11y ago
    It's interesting that you would argue that. What evidence do you have to support that position?
  - spacemanmatt 11y ago
    I consider myself a radical patent reformer, but I still can't agree to your assessment of relative harm. There is definitely room for improvement in defense, as well as repairs in cases where the suit was not merited. However it is also important not to cut too far in favor of patent defense, because small guys still need to be able to collect from big companies. In short, this is a system that needs some tweaks to punish abusers, but not a complete overhaul. IMO.
  - mejari 11y ago
    Are you aware of the number of speculative lawsuits done for more noble purposes? I'm not, but it seems like you'd have to know that if you were to claim that they aren't worth it.
nitrogen 11y ago
I think it would be better if legal expenses were put into a shared pool and divided equally between the parties, with some minimum contribution based on means.
chongli 11y ago
Patent trolls don't care about incurring liabilities; they simply fold up shop and start over with a new shell company. The winner never sees a dime.
- riffraff 11y ago
  presumably if the company goes bankrupt and it ows money to someone (i.e. the sued company) the assets of the troll (the patents) should go to the debtor, so hyow would this work? Or does US law permit you to close a company keeping all it has while not paying debts?
  - chongli 11y ago
    They don't hold all of their patents under one company, they split them up. If you prevail against them in the lawsuit, the only patents you'd collect from them are the ones you just overturned.
  - nikanj 11y ago
    IANAL, but I would think it would be possible to license the patent out to the shell company for relicensing. Something similar to how Microsoft Ireland is able to sell, license and sue companies using MS products without actually holding the copyrights to those products.
- spacemanmatt 11y ago
  This is why some of us believe standing in patent cases should not include non-practicing entities.
  - chongli 11y ago
    So then what happens to lone inventors or universities or anyone -- business or individual -- who develops an idea, patents it but cannot afford to bring it to market? Should they just forfeit their efforts to a large company without any compensation?
    - 11y ago
cbd1984 11y ago
"Loser" here means... >50% liable for what happened? Civil suits don't always have 'winners' and 'losers' in the same way criminal cases do, and even if this specific concept doesn't apply here, it does in other parts of this kind of law, so if we're applying the 'loser pays' notion generally it has to be addressed. Also, this would make it pretty much impossible for smaller parties to go after larger parties, because there are no sure things in law, and losing a case in a 'loser pays' system could make you liable for whatever the larger party could afford to pay for lawyers. IBM's legal fees don't come cheap.

Kaizyn 11y ago

What about cases where an individual or small business has been wronged by a big corporation? Then Big Corp. can simply intimidate them into not going to court because of the risk of losing and having to pay the legal fees.

throwawaykf05 11y ago

This trivializes the complexities and uncertainties involved in many lawsuits. I know someone who was a juror on a case where the entire jury agreed that real financial harm was done to the plaintiff, but could not return a verdict awarding any damages because of how certain business relations were structured and how the relevant laws applied to them.

mullingitover 11y ago
As a juror, you're free to return any verdict you like. Here's the list of juries who suffered consequences for returning the wrong verdict:
- themartorana 11y ago
  I read this and wondered it if we're true so I did minimal research. It is, but only if you believe the verdict you are returning to be true. Which is a small but important detail. "Because of the importance of preventing undue influence on a jury, jury tampering (like witness tampering) is a serious crime, whether attempted through bribery, threat of violence, or other means. Jurors themselves can also be held liable if they deliberately compromise their impartiality." http://en.m.wikipedia.org/wiki/Jury http://en.m.wikipedia.org/wiki/Jury
- joshuapants 11y ago
  How do you establish what a wrong verdict is? Another jury? And then a jury auditing that jury?
  - vacri 11y ago
    This is the basis of 'jury nullification'. You can't hold a jury responsible for returning a 'wrong' verdict - that's why they're there in the first place.
- throwawaykf05 11y ago
  This also oversimplifies how things work. Typically what happens in the US is, the judge presents the jury a list of mostly Y/N questions that is essentially a flow chart, which they must answer. This list is determined based on the arguments and evidence provided, and something that the judge works with both, the plaintiff and defense lawyers, to draft. Jurors cannot deviate from that flowchart. For instance, there may be only one set of questions to which you must answer Yes or No to reach the question that says "What damages do you award?" But if your answers do not lead you down to the conclusion that you'd like, too bad, the law and the facts don't support your preference. Juries could return any verdict that is not supported by the instructions, but I'd guess that is grounds for a mistrial.
rayiner 11y ago
Most lawsuits aren't lost on what people might think of as "on the merits." Statutes of limitations, federal preemption of state laws, etc. Defendants get off on technicalities all the time--that's the bread and butter of defense lawyers. And even when you lose on the merits, that doesn't mean there isn't any "there" there. I think the Ellen Pao lawsuit is a good example. I think, based on the evidence that came out, the jury decided correctly. But there was clearly enough misconduct to create justification for a lawsuit to dig into what really happened.

mejari 11y ago

You'd be surprised how hard it is to convince people to risk a 10-20% chance of losing literally everything you have in order to sue. Even with the strongest case no litigation is a sure thing, and if being unlucky in your case means your business ceases to exist no one is going to take that risk, no matter how right you are about your case.

spacemanmatt 11y ago

I can't agree at all with this profound simplification of a significantly complex topic.

fiatmoney 11y ago

"Speculative" lawsuits are an intentional feature of the legal system. That is why, after a lawsuit is filed (which requires a somewhat lower standard of proof), they allow for the process of "discovery", where you can subpoena for records you don't already have that may prove (or disprove) your case.

true_religion 11y ago
Intentional does not always mean good. I'd argue that the total damage to society done by allowing speculative lawsuits where the intention is just to scare or defame someone into settling, by far outweighs the benefit done by also allowing speculative lawsuits done for more noble purposes.
- harryh 11y ago
  It's interesting that you would argue that. What evidence do you have to support that position?
- spacemanmatt 11y ago
  I consider myself a radical patent reformer, but I still can't agree to your assessment of relative harm. There is definitely room for improvement in defense, as well as repairs in cases where the suit was not merited. However it is also important not to cut too far in favor of patent defense, because small guys still need to be able to collect from big companies. In short, this is a system that needs some tweaks to punish abusers, but not a complete overhaul. IMO.
- mejari 11y ago
  Are you aware of the number of speculative lawsuits done for more noble purposes? I'm not, but it seems like you'd have to know that if you were to claim that they aren't worth it.

nitrogen 11y ago

I think it would be better if legal expenses were put into a shared pool and divided equally between the parties, with some minimum contribution based on means.

chongli 11y ago

Patent trolls don't care about incurring liabilities; they simply fold up shop and start over with a new shell company. The winner never sees a dime.

riffraff 11y ago
presumably if the company goes bankrupt and it ows money to someone (i.e. the sued company) the assets of the troll (the patents) should go to the debtor, so hyow would this work? Or does US law permit you to close a company keeping all it has while not paying debts?
- chongli 11y ago
  They don't hold all of their patents under one company, they split them up. If you prevail against them in the lawsuit, the only patents you'd collect from them are the ones you just overturned.
- nikanj 11y ago
  IANAL, but I would think it would be possible to license the patent out to the shell company for relicensing. Something similar to how Microsoft Ireland is able to sell, license and sue companies using MS products without actually holding the copyrights to those products.
spacemanmatt 11y ago
This is why some of us believe standing in patent cases should not include non-practicing entities.
- chongli 11y ago
  So then what happens to lone inventors or universities or anyone -- business or individual -- who develops an idea, patents it but cannot afford to bring it to market? Should they just forfeit their efforts to a large company without any compensation?
  - 11y ago

cbd1984 11y ago

"Loser" here means... >50% liable for what happened? Civil suits don't always have 'winners' and 'losers' in the same way criminal cases do, and even if this specific concept doesn't apply here, it does in other parts of this kind of law, so if we're applying the 'loser pays' notion generally it has to be addressed. Also, this would make it pretty much impossible for smaller parties to go after larger parties, because there are no sure things in law, and losing a case in a 'loser pays' system could make you liable for whatever the larger party could afford to pay for lawyers. IBM's legal fees don't come cheap.