September 17, 2005
Two more examples of why I think America's lawyers are out of control.
A lawsuit against the US National Parks could spell the end for climbing in one of the world's premier climbing areas. A rock slide six years ago in Yosemite, the US climbing haven, killed climber Peter Terbush. Now Terbush's parents have filed a lawsuit against the National Park Service for wrongful death, accusing the park of causing the rock slide by having an overflowing water tank in the area.
Hanging by your fingernails onto a cliff a few thousand feet above the ground is an inherently dangerous activity. Part of the richness of life is the freedom to choose to do that sort of thing. Rock slides could never kill this sport, but lawyers most assuredly can.
And a class-action lawsuit has been filed against a large number of oil companies, naming as plaintiffs "all persons, businesses and entities in the state of Louisiana who have suffered damages as a result of Hurricane Katrina's winds and storm surge." I can't improve on Eaglespeak's explanation of why you sue oil companies for a hurricane. It's the same reason that Willie Sutton is supposed to have given for why he robbed banks, namely "that's where the money is."
Posted by James Hamilton at September 17, 2005 09:52 PMdigg this | reddit
Undoubtably they will settle, the lawyers will be able to retire, and the aggrieved will satisfied that at least someone made some money off of it. I guess that is why we have the alternative minimum tax. Make them pay even if they don't actually collect anything. Then the aggrieved can sue their lawyers for malpractice and the plaintiffs can sue the aggrieved for distress.
Posted by: Lord at September 17, 2005 11:23 PM
it's ALWAYS very easy to point out examples of abuse in any profession...so..what's your point?
Posted by: richt at September 18, 2005 05:19 AM
My point is that this "could spell the end for climbing in one of the world's premier climbing areas." These lawsuits can cause great damage even if, as I certainly hope, the plaintiffs do not prevail. I feel that we need an incentive system that does not make it in people's interest to file such lawsuits.
Posted by: JDH at September 18, 2005 06:41 AM
lawsuits like this (yosimite) make big headlines when they are filed, but not when they are dismissed. in any case I don't see how it is the lawyers who are out of control unless you mean the judicial system is allowing the filing of lawsuits that it shouldn't (and hence the lawyers are out of control). I think writing a precise definition of what lawsuits can't be filed would be rather difficult. isn't that why we have judges?
the fact that climbing is an inherently dangerous activity doesn't automatically excuse every other action, for example suppose the park service had wiped him out by backing a dump truck up to the edge and dumping a load of rocks? sure, this is a made up example, but my point is negligence covers a wide spectrum and it may not be as clear as you imply. did the park service know the tank was leaking? would a competent person, e.g. the person managing the water system, have known that the water increased the risk of rock falls?
my objection to this kind of lawsuit is not that they are filed, but that they are often settled rather than tried, thus deep pockets of any stripe are subjected to nuisance lawsuits. one way to stop this (yes, I know there are unpleasant implications as well as benefits) would be for the loser to pay the legal costs. lawyers who work on contingency would not be quick to file if the downside was bigger.
Posted by: supersaurus at September 18, 2005 07:37 AM
One of the oil company CEOs noted recently that the US graduates 43,000 lawyers a year but only 430 petroleum engineers. I don't see any "law suit shortage" looming. How do we support all those lawyers in the manner to which they aspire? Are there supra-economic incentives involved.
There is the old story, if there is ONE lawyer in town, he starves. If there are TWO lawyers, they BOTH get rich.
Posted by: Joseph Somsel at September 18, 2005 11:24 AM
"....I feel that we need an incentive system that does not make it in people's interest to file such lawsuits...."
No argument...but you must be sure that your solution does not cause more damage than the problem.
As for the damage by legal actions like this I believe the points supersaurus made are well taken. Most of these actions are dismissed so I don't consider your point to be that strong.
Posted by: richt at September 18, 2005 02:49 PM
geez...I misspelled "yosemite". finger tranpose...
Posted by: supersaurus at September 18, 2005 08:30 PM
It's conservative deceptiveness to imply that lawsuits are the problem, purely an attempt to protect large corporations so they can go on damaging people and the environment and not have to pay for it.
If you don't like the numbers of lawsuits, change the laws and require better research before filing, but don't blame the lawyers. Lawyers won't file suits if they're penalized for filing frivolously.
Maybe the water tank was proximate cause to the rockslide, and maybe someone should pay. I don't know because I don't know the facts of the case. And neither do you.
If there's nothing to the case, then sanction the lawyer for wasting the court's time. But if there's a legitimate case, there's no reason it shouldn't be persuable.
Except that apparently people's deaths inconveniently get in the way of your rock-climbing vacations. So sorry about that.
Posted by: RH at September 18, 2005 09:00 PM
I think that the ranks of economists are out of control and should be heavily thinned out. Lawyers at least occasionally achieve restitution where justly due. Economists, who can't seem to agree on anything, don't seem to be doing anyone any good at all, as far as I can tell.
Posted by: Marat at September 18, 2005 09:19 PM
RH, the desirability of having a judge or jury determine the facts of the case and what caused the rock slide is exactly what I am vehemently disputing.
I assert that it is a right of free Americans to live life fully and that the very process of asking a court to determine who is responsible for a rock slide is a threat to that right. The reason is that once you establish the legal premise that the National Park Service is potentially responsible for whether rock slides occur, what that amounts to in fact is that the National Park Service is responsible for ensuring that no one climbs on rocks in any national park.
If you will tell me what laws need to be changed in order to give Americans the freedom to climb rocks, then I will be happy to help champion those legal changes. I agree with you, I am not blaming lawyers for trying to make themselves rich from existing laws. I am advocating a change in the laws, not attacking the ethics of lawyers.
Though I'm curious-- exactly what law is it, and when was it passed, that determined that someone else is responsible when I decide to put myself up on a cliff?
Posted by: JDH at September 18, 2005 09:54 PM
Guess who the lawyers are in the above comments. Squeal of stuck pig?
"I am advocating a change in the laws, not attacking the ethics of lawyers."
You have a point there, you cannot attck something that does not exist.
Posted by: Robert Schwartz at September 18, 2005 10:45 PM
Guess what? Lawyers don't sue people, PLAINTIFFS do. If there were no greedy plaintiffs there would be no frivolous law suits. Also there are sanctions for abuse of process and filing frivolous claims.
There is abuse, of course, but judges don't often suffer fools gladly. If there is no legal basis for a suit the lawyer risks losing his out of pocket costs and the value of his (and his staff's) time. Most lawyers learn the hard way that it can be very expensive taking on every hare-brained case that comes along.
As a matter of fact, you are right about climbing a cliff: there is something called assumption of the risk, and unless there are some really unusual circumstances, climbing a cliff would normally entail knowingly assuming the risk of some very bad consequences.
I suggest you relax. This suit isn't going anywhere. Maybe the lawyer hopes he'll get some other clients if he gets his name in the paper.
Posted by: Alawyer at September 19, 2005 01:57 AM
A Lawyer. -
But a plaintiff has no way of knowing if his complaint has a legal grounding or whether it's frivolous. Lawyers should serve as that gatekeeper as they are the experts in the law, not the layman.
It has nothing to do with the fact that rock-climbing is, per se, a dangerous activity. Driving tired is much worse. What matters is if someone knowingly made it much -more- dangerous in this case and failed to warn, as in creating and failing to disclose a water leak that weakened the rock substantially. You economists would probably see that as failing to be compensated for a material increase in risk because it was not disclosed. Though obviously much more serious, it's akin to buying stock in a company which didn't disclose a major flaw which causes you to lose all your investment capital (and your life). In this sort of a situation the law exists not to prevent us from undertaking activities, but to try to help us make informed decisions. No one would choose to climb rock that said "this rock has been damaged and you will die". So your argument falls down on it face.
Again, I don't know all the facts of this case and clearly neither do you, and probably the judge will laugh this one out. But the absoluteness of the position you take is ignorant and dangerous.
Posted by: RH at September 19, 2005 05:06 AM
All that the people have is regulation and tort law. Sometimes tort law provides the best regulation by economic means. And, with good regulations you may not need tort, but right now we have people trying to kill both regulation and tort. Without either, we would all be hostage the corporate will.
Posted by: ken melvin at September 19, 2005 08:28 AM
Innocent parties frequently face economic damages from litigation. That is one of the general problem the US faces in a nutshell. So the question is how best to protect the innocent from litigation. Something clearly needs to be don.
The posters here writing that the lawsuit will be dismissed (probably) and the lawyers sanctioned (which happens infrequently) are ignoring the issue, probably out of self-interest.
Posted by: jult52 at September 19, 2005 10:23 AM
these suits surely seem crazy and unjustified, but many times we do not know the whole story. for example, the climber may not have actcually been climbing when the rockslide hit him. perhaps we was indeed a world class climber that would routinely climb 2000' cliffs hanging on by his fingernails, but what if the rock slide killed him while he was in line at the port-a-potty? I don't know the facts of the case either, but this is often how Right-Wingers omit facts and even change facts in order to make people think that lawsuits are "out of control". Don't get me wrong, there are certainly some goofy cases out there, however, they are usually alot less prevalent than people think.
A really good example is the recent University of Texas Law School study that found that neither claims nor jury verdicts account for recent increases in insurance premiums. see here:
Posted by: dude at September 19, 2005 11:49 AM
I second everything dude said...
Posted by: RH at September 19, 2005 08:39 PM
"How do we support all those lawyers...."
Ask corporations. They hire them because THEY file the vast majority of lawsuits in this country as PLAINTIFFS against other corporations.
But, like JDH, we are titillated to hear about the 'sexy' ones. So the conventional wisdom is that the type, which he sites, is the majority.
Conventional wisdom, wrong again.
Posted by: JackNYC at September 20, 2005 10:33 AM
One problem is that the system is not set up to provide jurors with all relevant information about the impact of their decisions. A jury may decide in favor of a victim in a rock climbing accident case, out of compassion. Perhaps if they were informed that by making this decision they would effectively shut down all rock climbing in national parks, they would think twice. But normally this kind of thing would not be admitted, it is considered "prejudicial" and not part of the facts to be considered in the case.
Posted by: Hal at September 20, 2005 08:35 PM
In the interests of full disclosure, I'm a lawyer. All these discussions that blame litigation for the evils of our time ignore the alternative. The alternative to the freedom to hire a lawyer to file a suit based upon a real or perceived grievance is totalitarianism.
Think about it. What if Yosemite IS negligent?
Posted by: socratic11 at September 21, 2005 08:58 AM
I don't think anyone is complaining about "real" grievances. The problem is that that we've built strong economic incentives to 1) encourage trivial or unwise grievances on the part of the people and 2) encourage a bunch of hungry lawyers to find, create, or inflate petty issues. In both cases, we've developed a "lottery" mentality - spill your coffee and win millions!
The lure of easy money supresses personal responsiblity and encourages criminality (see Wendy's).
We've lowered the bar on law suits so that the process now transfers lots of money with no economic gain or positive effect. Rather than the "invisible hand" of the marketplace, we see random transfers based on who can best replicate the crying of an unborn fetus (Edwards).
I think what Americans want is a tightening of the process - a better signal to noise ratio from our legal system.
Posted by: Joseph Somsel at September 22, 2005 06:55 AM
Actually, most of your information is anecdotal. If you look at recovery statistics and insurance payout rates, lawsuits are making less of an economic difference than they ever were.
The spilled coffee case is the perfect example of spinning by the better financed Hardee lawyers to try to influence appellate courts. An examination of the facts of that case reveals one of those "real" grievances, where willful negligence cried out for sanction.
The tort law has many normal controls over frivolous claims. The strongest control derives from the fact that litigators know how difficult it is to pay for the work they do with phantom recoveries.
They need a strong chance of getting to a jury before they'll proceed and it's very difficult to get past preliminary dismissal motions on any novel tort claim. This is a FACT.
Posted by: socratic11 at September 22, 2005 08:06 AM
Aren't all lawsuits "anecdotal"?
Let me give two cases of non-trivial general economic impact - asbestos and tobacco. Neither produced just results yet have cost society billions of dollars. Certainly, lung disease from industrial exposure to asbestos is an individual cost that society could and should compensate yet the understanding of the risks was slow to develop. A lawsuit that bankrupts the asbestos producers is not productive.
Likewise, the tobacco lawsuits were predatory - smokers voluntarily and knowingly assumed the risk from smoking.
The biggest risk is now the politicalization of class action lawsuits where poor public policy has resulted. Conversely, trial lawyers are some of the biggest compaign contributors in our election system. They are not pouring all that cash into politicians' coffers in a selfless act for the good of the poor and downtrodden clients!
Sorry, but the law suit industry in this country is another example of a good idea corrupted.
Posted by: Joseph Somsel at September 22, 2005 09:43 AM
No. Lawsuits are real occurrances. Your attempt to use one or two incidents that you can gin up into something ridiculous is an "anecdotal" argument for imposing totalitarian irresponsibility.
The Tobacco companies were winning every lawsuit precisely because of the arguments you raise, but the state attorneys general ganged up and threatened to cheat the system with government sponsored class-action suits. With a goofball in the White House, there was little chance of Big tobacco getting a fair shake and they settled out of court. Bad example.
It turns out that Big Tobacco is now immune from suits, as a result of the settlement, and is doing very well selling those wonderful American tobacco products where they're appreciated.
Asbestos was the perfect storm of an inherently unsafe product. The companies declared bankruptcy as a recognition of the inevitable. I'm sure their non-asbestos businesses are now doing very well.
Posted by: socratic11 at September 22, 2005 12:21 PM
My dictionary calls an "ancedote" as a short narrative, therefore, each lawsuit is a story unto itself.
Asbestos remains a very old, and very useful product! We've discovered risks in its use. The lawsuits against the manufacturers attempted redress retroactive to that understanding.
Your description of the tobacco case supports my case - politicized beyond justice. The net result was a hidden tax on future smokers that transfered a bundle of money to the states' politicians to spend.
And, just for historical accuracy, the "goofball" was Bill Clinton.
Posted by: Joseph Somsel at September 22, 2005 02:12 PM
I knew who the goofball was.
The politicization of a good thing does not make a good thing bad.
Posted by: socratic11 at September 23, 2005 07:56 AM
Being a former climber, this news pains me, but I do not follow you in blaming the lawyers. Lawyers are in a competitive business, and they will take a crack at any opportunities in the system.
If you want to blame someone, either blame the parents putting their names on a suit that would probably have the deceased son (or most any deceased climber) rolling in his grave.
Or you can place the onus lawmakers to adjust the legal framework.
Blaming the lawyers is like blaming the kids working at McDonalds for the nutritional content of the food they are serving. There is always someone at the margin that needs to earn a living.
Posted by: llld at September 27, 2005 03:26 PM
Mr. Third (IIId)
How many members of Congress are/were lawyers? - I'd guess 80 to 90%.
What group has one of the largest lobbying budgets?
Agreed that the legal framework for lawsuits need to be revised to raise the bar.
Posted by: Joseph Somsel at September 28, 2005 08:37 AM
Perhaps you economists can explain it to me:
What is the incentive for a personal injury contingency fee lawyer - who gets paid by results - to spend his time prosecuting frivolous claims?
And what is the incentive for a corporate defendant's lawyer - who gets paid by time - to spend his time presenting frivolous defenses?
In theory, wouldn't we expect to see the contingency fee lawyer very hesitant to present frivolous claims? And wouldn't we expect to see the defense lawyer very anxious to present any defense, no matter how ridiculous?
And in our tax law, don't we taxpayers subsidize the attorney's fee of one side only - the corporate defendants? Wouldn't this subsidy also tend to encourage frivolous litigation from the defendant's side?
Posted by: dogfacegeorge at September 30, 2005 01:48 PM
Apparently some lawyers just manufactured data for a class action lawsuit against silica manufacturers:
For thousands of patients, they were listed as victims for -both- asbestos poisoning and silicosis. And for a large subset of those, it was the same doctor with the same data making both diagnoses. The key difference being what the lawyer wanted to hear.
Posted by: Dan at October 9, 2005 12:34 PM
Tell me about Louisiana Frivolous Lawsuit Sanctions. Especially in child custody cases. firstname.lastname@example.org
Posted by: Kelly at November 9, 2005 02:11 PM
From the Superclimb link above:
Wieczorek [of the U.S. Geological Survey] has documented more than 500 slides in the park since 1850, and the common demonstrable factors are the effect of the freeze-thaw cycle, heavy rainfall and earthquakes. Although water can trigger slides, he said, natural drainage into the soil from abundant snowfall dwarfs any overflowing bathroom water.
Posted by: Tom at December 22, 2005 05:50 PM