Patterico's Pontifications

9/2/2010

Lawyers: Making the Swingsets Disappear

Filed under: General — Patterico @ 7:29 pm



From Investor’s Business Daily:

Fearing lawsuits over injuries, a West Virginia county is removing swing sets from elementary schools. A minor, local issue? No. America’s litigious society has changed the way kids play.

Roughly a year after a child broke his arm jumping off a swing like Superman and his parents are settling a lawsuit for $20,000, Cabell County, W.V., schools are yanking swing sets from school playgrounds. The lawsuit was one of two filed in the last year against Cabell County schools over swing set injuries, the West Virginia Record reported Thursday. School safety manager Tim Stewart, who is overseeing the removal, said he sees “a high potential when it comes to swings and lawsuits.”

What’s happening in Cabell County is not an isolated case. Local governments, fearful of lawsuits, have been for years closing pools, stripping playgrounds of equipment and banning outdoor games.

A Massachusetts elementary school has told students they can’t play tag. One Boston school forbids handstands while another in Needham, Mass., doesn’t allow students to hang upside down from the monkey bars. A pool in Hazleton, Pa., closed some years ago after a swimmer sued for $100,000 because he cut his foot running and jumping into the pool, though he’d been warned not to.

There used to be pools. Not only that, they used to have diving boards. When’s the last time you saw a diving board?

Or a jungle gym?

Civil lawyers are ruining this country.

106 Responses to “Lawyers: Making the Swingsets Disappear”

  1. this is what fighting back against trial lawyer vermin looks like.

    more, please

    happyfeet (19c1da)

  2. Guns don’t kill people. People kill people.

    Lawyers are not guns. But greedy and irresponsible people who hire lawyers, and use them to vindicate their attitude that “if something bad happens, someone should pay me,” are responsible too. It’s a cultural problem; lawyers are merely the willing instruments and one of the beneficiaries.

    [Full disclosure: 50% civil lawyer, maybe 10% plaintiff side here.]

    Ken (4c0e59)

  3. My daughter’s high school, a private Catholic school, had a rock climbing club. Then, one day, a girl fell sustaining a minor injury. The parents, of course, sued and there has not been a rock climbing club since.

    I don’t have a huge problem with lawyers; two of my kids are lawyers, but the litigious nature of our society has to get some sense.

    Mike K (d6b02c)

  4. This is not a new phenomena.

    JD (8ded14)

  5. There used to be pools. Not only that, they used to have diving boards. When’s the last time you saw a diving board?

    It’s even worse than that, Patterico. Because of the threat of lawsuits, no one will insure a swimming meet if the swimmers dive from starting blocks into water less than 5 or feet deep (U.S. Swimming requires 5′, the YMCA requires 5 1/2′). When I was competing we regularly dove from the blocks into three-foot shallow ends. Because of this new requirements, a lot of older pools (i.e., built before 1980) can no longer hold swim meets. The only Olympic-size swimming pool in my hometown is no longer insurable. That pool used to hold the state championships. Olympians have competed in that pool.

    And, no surprise, my elementary school long ago removed the monkey bars from which several of my friends fell and broke their arms. Life is going to be really boring once we scrub any danger from it.

    JVW (eccfd6)

  6. Frivolous lawsuits and sleazy lawyers are just the symptom of a broken tort system.

    Loser pays winner’s lawyer fees would reduce the shenanigans to a trickle.

    We all know what the cure is but the ambulance chasers have too many sympathetic ears in Congress and the State Houses.

    And they wonder why everyone has so little respect for lawyers and Congress?

    jakee308 (e1996a)

  7. Living life (even with all its risks) used to be much more fun and rewarding for everybody. Accepting individual responsibility and learning valuable lessons from the school of hard knocks is almost non-existant these days. Thanks plaintiff lawyers! Childhood memories 50 years from now are going to be pretty boring and meaningless.

    elissa (72cba6)

  8. What is the euphemism that the Trial Lawyer’s Association came up with?

    JD (8ded14)

  9. That would be the American Ass’n for Justice, JD.

    elissa (72cba6)

  10. At the risk of sounding sexist, it makes me particularly sad for little boys who don’t get to be the wild daredevils they seemingly are inherently meant to be for a phase of their childhood.

    This may sound extreme but it does seem like yet another step in the emasculation of the American male.

    Take away the swings to madly jump out of, take away the monkey bars to hang upside down from, take away swimming pools to obnoxiously cannonball in to and all you’ve got left are rooftops to dare each other to jump off of.

    Dana (8ba2fb)

  11. It is just as much the society that takes care of freeloaders as it is lawyers who take advantage of the tort system. There is no such thing as an “accident” anymore….it’s always someone’s fault, and it seems as it is usually the fault of those who did nothing “wrong” but should have “forseen” the stupidity of others….

    reff (176333)

  12. Dana – When we were kids, we ran and jumped off of the roof of our house into the pool. We temporarily set up the trampoline between the house and the pool, but that did not work out so well.

    JD (8ded14)

  13. In California, the euphemism is “Consumer Attorneys of California.”

    Brother Bradley J. Fikes, C.O.R. (fb9e90)

  14. elissa – Doesn’t their chosen name acknowledge that to them, justice has a price tag?

    JD (8ded14)

  15. JD,

    LoL! That’s precisely the reason we never put a pool in. Having two boys who loved being daring and egged the other on – we knew better. To this day, both love rock climber and fixed gear cycling. Why can’t they golf?

    Dana (8ba2fb)

  16. Civil lawyers are ruining this country.

    Uh, and doesn’t a very high percentage of such people tilt to the left politically? Aren’t most of them closely intertwined with the Democrat Party?

    Is the sun hot, is Antarctica cold?

    Mark (411533)

  17. Agree completely, Dana.

    This is why so many families now see smaller towns with open ball diamonds/playgrounds, and town squares where it’s safe to ride a bike, and schools with non-union teachers,—along with semi- rural areas with ponds and forests to be so appealing as places to rear interesting and self reliant children.

    elissa (72cba6)

  18. Golf is the sport of Kings, Dana. I am an addict. I am not sure which was more fun – a running full gainer off the roof, or off the roof onto the trampoline and a front flip into the pool.

    JD (8ded14)

  19. While the linked article states that our fear of litigation is changing American culture (and I agree), I would be very curious to discover which parent typically poses filing a lawsuit. My money is on the moms who wring their hands and have mini-strokes when their kids get the injuries that come from curiosity, exploration and pushing the envelope a little. Unless maybe dad is a lawyer himself…

    Dana (8ba2fb)

  20. Dana – I used to handle these kinds of claims when I worked in insurance, for school districts, cities, stores, etc… In my experience, there was really no difference between the mothers and fathers that pushed these things. Equally opportunity asshattery.

    JD (8ded14)

  21. At the risk of sounding sexist, it makes me particularly sad for little boys who don’t get to be the wild daredevils they seemingly are inherently meant to be for a phase of their childhood.

    This may sound extreme but it does seem like yet another step in the emasculation of the American male.

    Take away the swings to madly jump out of, take away the monkey bars to hang upside down from, take away swimming pools to obnoxiously cannonball in to and all you’ve got left are rooftops to dare each other to jump off of.

    Comment by Dana — 9/2/2010 @ 8:16 pm

    +1000

    And not sexist at all. There are many real differences b/t men and women, and little boys and girls FTM, whether or not it pleases the radical left to admit it.

    Have been recommending this book lately. Maybe I’m so fired up because I have a friend w/ 5 boys who is waging a very conscious war on the media and its anti-male bias when it comes to teaching her (some now grown) sons from a very young age to be very critical — mocking, even — of the incessant antimale messages in the media.

    no one you know (6631bc)

  22. There goes Shop Class, too…

    Ironically another lawsuit against a teacher for failing to warn an 18-year old in Shop class of the dangers of clamping live alligator clips to his nipples and receiving an “out of hospital electrocution resulting in cardiac arrest, unresponsive state and respiratory failure,” according to the lawsuit.

    *Although according to the article, it would appear the teacher was reckless.

    Dana (8ba2fb)

  23. I was just wondering if anyone else sees a certain dichotomy here.

    The First Lady’s campaign is to get kids to eat right and exercise to fight childhood obesity. This is no criticism of her or her campaign. I have no problem with it at all. It is a good project.

    But trial lawyers, along with some parents, seem to be bent on making sure that no child can participate in the very activities to well, you know, stop kids from being fat.

    Then, you have the media’s relentless campaign to make sure every parent knows that the minute you let a child outside, some sort of pervert will kidnap and kill them.

    So, you have all these huge community organizations with baseball leagues and volleyball leagues, etc., for kids to participate in safely when they’re as young as four or five.

    Then, there’s the accusation of pushing kids to be too competitive when they’re too young and parents pushing them to be ready for high school and college and, of course, the usual perverts that take advantage of the systems as well as the accidents that result in injury along with the parents fighting in the stands, etc.

    Then again, the lawsuits and tears and recriminations and on and on.

    I may be the most ignorant parent in the world, but my experience as a father and as a child tells me this: Kids want to play and sometimes they get hurt.

    More importantly though is they may want to eat bad things, but what they really want to do is run as fast and freely as they can with their friends, they want to compete and win, and they want their parents to tell them when to stop. They are kids.

    Ag80 (2f74a7)

  24. That was a most excellent comment, Ag80.

    JD (8ded14)

  25. The First Lady’s campaign is to get kids to eat right and exercise to fight childhood obesity. . . . But trial lawyers, along with some parents, seem to be bent on making sure that no child can participate in the very activities to well, you know, stop kids from being fat.

    That is a great point, Ag80. I guess the trial lawyers and nanny staters (i.e., the Democrat party) would just have kids jog around in circles at recess. Like today’s ADD-riddled kids will put up with that.

    JVW (eccfd6)

  26. Sippican gets it.

    Dana (8ba2fb)

  27. I haven’t seen a merry go round in a park for ages. They want to turn children, both boys and girls, into a bunch of pansies.

    Brett (d89043)

  28. When I was 8 I fell off monkeybars at a park and broke my wrist. I wore a cast and life went on. I can’t imagine anyone considering suing the park or the city. Our country is falling apart, refusing to accept that life has its bumps, while trying to blame others and completely sanitize our daily life in the process.

    Best wishes,
    Laura

    Laura (82a2e2)

  29. Lawyers are ruining this country.

    FTFY!

    that guy (fb8750)

  30. that guy/red:

    I take exception to any suggestion that those in my profession are ruining the country. If anything, we’re helping to save it.

    It’s only my recognition that you are joshing that prevents me from virtually whapping you across the head with a 2×4.

    Patterico (c218bd)

  31. Another consequence – our tiny rural community recently organized to oppose a giant solar project, and in looking for places to meet, faced demands for $1,000,000 insurance to sit in a room and talk. Insurance would have cost about $850, when we had no money or organization. Both the schools and the church required it, the only local buildings big enough. Somebody might trip and sue.

    Eventually a local insurance broker somehow put us on his own business policy. He has tried to find us our own insurance (we can now pay for it), and we are repeatedly refused bids because we might be protesters! As one of our people commented, laughing, most of us are too old to work up the energy!

    But the bottom line is the sue-happy condition impinges on groups of people meeting peacefully in public to do legal things, like talk.

    jodetoad (7720fb)

  32. I sense a huge class action suit brewing. The schools are not seeing to it that the children get enough exercise leading to decreased health, obesity, and early deaths. That should be good for 10s of billions of dollars country wide. After all, it hits ALL school districts in the country, doesn’t it?

    {^_^} I wish I was kidding. I really do. . . . No, on second thought I don’t. Bankrupt the state school systems so that we MUST go back to local systems paid by local dollars controlled by local parents.

    JD (98e9d7)

  33. Perhaps the devil has asked me to play his advocate here, but I respectfully dissent in part from this post, Patterico.

    If you mean “personal injury lawyers representing plaintiffs suing on a contingent fee basis” — that’s who I think you’re targeting here, and actually only a subset of those — then you’re being awfully imprecise with the phrase “civil lawyers,” my friend.

    I know you know that there are also lawyers who specialize in defending against personal injury lawsuits. They’re also “civil lawyers.” Are they ruining the country too?

    How about my friend who writes wills and plans estates. He’s a civil lawyer, although the only court proceedings he does are uncontested probate matters. I’m pretty sure you weren’t intending to refer to him.

    I can certainly think of situations when that would be completely appropriate to sue a school district after a swingset or jungle gym injury if there were some actual negligence on the school district’s part: If one puts up something guaranteed to attract kids, one needs to keep it maintained, for example, and if the obviously rusting-through monkey bars aren’t replaced, then when they finally break and drop Junior on his head, that would be a justified lawsuit. Or suppose the school district’s maintenance team has decided to replace the bolts holding a diving board in position, but the district’s employee doing the job doesn’t put up warning tape or signs or otherwise block access to the board while he’s at lunch, even though he’s removed the old bolts; as a consequence, the board flips Junior onto his noggin on the concrete pool edge as soon as he sets foot on it. Negligent enough to meet your standards?

    I don’t understand you to be proposing an absolute tort immunity for school districts (beyond that which at least public schools may already have as quasi-governmental entities), so presumably you’re willing to concede that at least some personal injury lawyers at least sometimes are justified in bring suit for at least a few clients who’ve been injured on school equipment due to the failure of a particular school to exercise reasonable care. No?

    Obviously there are sometimes unjust civil trial verdicts, and when they go in favor of plaintiffs in personal injury cases, one can plausibly blame the lawyers who were handling those cases. But you know what? Having both defended against and represented personal injury cases — and I’ve actually tried about 20 on the defense side for every one I’ve tried on the plaintiffs side — I can guarantee you that there are also plenty of unjust civil trial verdicts in personal injury cases where the injustice is that the defendant won, or lost less than he/she/it should have. As with elections, and as with representative democracy, and as with cases on the criminal side, the justice system relies on human actors to reach its results, so it is as flawed and imperfect as those humans, while yet being the very best systems we’ve yet been able to come up with to accomplish, most of the time, their intended functions.

    Is it at least possible that the school districts referenced in the article have done a poor job in assessing their actual litigation risk, and that they’re acting irrationally? Perhaps they’re over-valuing anecdotal examples, rather than evaluating their risks in a professional manner? Because, of course, one could extend their logic as justification for shutting down all student activities other than sitting motionless at their desks. At the public high school my son and daughter attend, they actually do still play football, and my son actually is a captain of the wrestling team. The school does a good job of supervising the activities and maintaining the equipment, but some kids still get hurt, and they’re certainly accepting some risk as a tradeoff for providing these activities. So are they the stupid ones, and the ones quoted in the story the smart ones?

    If you have a solution that doesn’t involve disbarring everyone who has represented, or who ever may represent, a plaintiff in a personal injury case, I’d be glad to give it careful consideration. But I’m not aware of one.

    Beldar (ce0136)

  34. Ouch.

    I came here to thoroughly agree with Patterico’s post (while perhaps also noting that “civil lawyers” was too broad since this does indeed include defence lawyers), but Beldar’s comment gave me pause.

    I wonder if the problem isn’t a combination of legitimately negligent school districts and/or school districts improperly backing away from the slightest legal risk. Maybe the solution is better school trustees?

    I don’t know.

    I do know that life isn’t perfectly safe — indeed, it’s invariably fatal — and that children should play.

    Christoph (8ec277)

  35. jakee308 #6 and Beldar #33 …

    I’ve said it before and I’ll say it again … and again …

    The US needs “Loser Pays” … non-frivolous lawsuits with merit will still succeed – and frivolous lawsuits without merit will dry up and blow away quickly enough when they don’t just not get any money but actually have to pay defendant’s costs too …

    elissa #9 – so how long until they change their name, again, this time to “The Justice league of America” ?

    Alasdair (205079)

  36. The US needs “Loser Pays”

    Okay that makes sense. That’s what Canada has and it seems to work.

    Christoph (8ec277)

  37. Alasdair (#34: 9/3/2010 @ 12:35 am): There are many different systems, and proposals for systems, that might be or have been called “Loser Pays.” If you want me to tell you why it’s a bad idea, I need to know precisely what you mean. Can you give me a reference point as an elaboration? Better still, a link?

    All U.S. States (except Louisiana), the U.K., Canada (except Quebec), and Australia all share common-law origins from England and Scotland, and you can already find versions of “Loser Pays” in some of them. But the versions differ substantially from one another — running along a continuum from really harsh to practically toothless. Some of them we have lots of experience with, but others have been put in place more recently and are still being “tweaked.”

    And there have also been a great many proposals made by various American tort reform groups. Some of them look nothing like anything that’s actually been put into place anywhere in the civilized world, but I don’t want to rule out untried proposals out of hand. I just need their details in order to discuss them, if it’s one of them that you have in mind.

    It matters a whole lot, for example, whether you’re proposing to make the lawyers pay out of their pockets, or their clients, or both. Does the payment have to be secured (for instance, by posting a bond when the lawsuit is filed? Or on the brink of trial? Some other time?) Because most PI plaintiffs, and a surprising number of PI plaintiffs lawyers, are functionally insolvent (i.e., their only executable assets are within their home-state homestead exemption), and you can’t get blood out of a turnip or money out of the penniless.

    Does the judge set the fees paid to the winner? A jury? Is the amount based on what each particular winning side actually paid its lawyers?

    Is what you’re proposing genuinely bilateral — “Loser pays” even when the loser is the defendant? Because right now, under current American law in most or maybe all states, personal injury plaintiffs typically can’t recover attorneys fees.

    If what you’re proposing is symmetrical, you’re actually going to increase the recoveries of every plaintiff who wins. And if you’re permitting plaintiffs who are winners to get their attorneys’ fees, and you’re basing it off what their clients actually “paid” them, then are you going to award them, say, another 33% on top again? Or require them to prove up the number of hours they’ve invested and then assign some hourly rate? Is the hourly rate you’re going to use the one charged by lawyers in that community, or nationally? What if the client is in Patricia, Texas, but hires crack lawyers from Washington, where average hourly rates are much higher (as would be the expenses)? But what if there aren’t any lawyers in Patricia that the client liked, or that liked the client? Is he limited to “Lubbock rates”? Or do you have a statutory rate? (If this is beginning to sound like the problems of setting costs for Medicare or, vastly worse, Obamacare, well … yeah, whatever made you think the legal system is any less complex than the healthcare system?)

    The devil is in all these details. The details define the tradeoffs and allocate the incentives and disincentives.

    We actually already have, in practically all American civil courts, a version of “Loser Pays” through the existing sanction rules. In most (including the state and federal courts in which I practice), the punishments for “litigation abuse” already available include awards of the other side’s attorneys’ fees and/or expenses. I’ll readily concede that as currently administered, the existing sanctions regimes probably don’t have as severe an inhibitory effect on meritless lawsuits as you’re probably looking for. But I assure you that I’ve personally witnessed, over the course of my career, both expansions and contractions of the so-called “sanctions practice” — roughly defined as attempts to win not on the basis of the merits, but instead by getting the judge to hamstring the other side in some important way via extremely zealous enforcement of the existing sanctions rules.

    Indeed, the biggest contraction in Texas state-court sanctions practice was the result of a 1991 decision of the Texas Supreme Court, since codified by that same court into the Texas Rules of Civil Procedure, that much more tightly defined (and thereby limited) state trial judges’ discretion in dishing out sanctions. This cut in the opposite direction from the logic of most “Loser Pays” systems, yet it was widely — and as it’s turned out, correctly — perceived as being a “pro-tort reform, pro-defendant” measure: abuse of sanctions motions had become a bigger problem than the misconduct supposedly justifying the sanctions!

    I’ve also represented clients who’ve been victimized via sanctions practice — including an appeal of a seven-figure sanctions award — and they probably wouldn’t agree that the existing sanctions for taking frivolous positions are toothless, because they’ve been bitten pretty hard. So is “Loser Pays” going to be laid down on top of the existing sanctions rules? Or replace them?

    There isn’t a simple binary choice here, despite the wonderful (and, forgive me, simplistic) appeal of a phrase like “Loser Pays.” If you think this issue is easy, you don’t understand the issue.

    Beldar (ce0136)

  38. (About now, Patterico is muttering something about “Beldar and his ‘wall of text’™ comments!” He’s right, too.)

    Beldar (ce0136)

  39. I know it’s possible to file, and win, a lawsuit in English Canada, but we always make fun of your country for having so many frivolous lawsuits.

    Now I have no idea what the finer distinctions are in our system and it sounds like you have at least an inkling. All I’m saying is your country seems to be more racked by out of control litigation than mine.

    So possibly studying my country’s system, or Australia’s, or whoevers’ might be valuable to those Americans who care about this issue.

    What is the percentage of your population that are lawyers compared to most other countries? My understanding is it is fairly high. Does it need to be so high?

    Why not get back to more of the best and brightest entering business and science and not just law.

    Christoph (8ec277)

  40. It’s not just the USA.

    Here in New Zealand, roundabouts are scarce as hens teath. I know of one slide that was removed after some kid decided to slide down one of the poles instead.

    They haven’t banned trees yet…

    scrubone (8d0ece)

  41. So, Beldar, are you arguing that everything is fine the way it is? That there is no room for improvement?? Or just that when the issue is examined closely it is not as simple to improve as some would like (though you feel things could be improved?)

    I am sure some local entities make decisions that are illogical, and lawyers are behind some of those. I don’t think anyone is saying that negligence should be ignored, and I am sure you have seen injustices from different sides as you describe, but my experience has been that legal action has hurt the responsible and protected the unjust because of who had the money and has squelched the good that people would do.

    One writer on children said, “Of course raising boys is more difficult, because first you need to keep them alive!” One of his stories had to do with his son thinking it was a fun idea to run around in the back yard with his eyes closed. We all know that ended in a confrontation with a tree.

    MD in Philly (3d3f72)

  42. We still have diving boards and water slides in the pools my daughter swims, but they are in affluent suburbs that can afford top of the line facilities and insurance from AAA-rated companies.

    Our school, however, dropped dodgebal even though we were using nerf balls instead of soccer balls like when I was a kid. I asked the principal about it at the school meeting two days ago and he said the district thought it should follow the nationwide policy. I understood it as since so many other schools have stopped dodgeball, we should too.

    nk (db4a41)

  43. My daughters’ elementary school bans running on the asphalt during recess . . .

    Golden Eagle (4e9369)

  44. “nationwide policy”? Sounds like Teh One has been at work again.

    Icy Texan (01c5c3)

  45. Maybe that could be his new slogan: “Systematically removing the balls of America since January 20th, 2009”.

    Icy Texan (01c5c3)

  46. Beldar, from what I’ve seen, “Loser Pays” refers to if the plaintiff fails to succeed in their suit, then the Plaintiff pays the defendants fees. There’s a lot of hidden context in the phrase and for the purposes of precision, it would be better to be termed “Losing Plaintiff pays all costs” but that’s not as catchy as “loser pays”.

    Sure there would be all sorts of instances (depending on how the law was written) of unfairness but isn’t what we have already unfair?

    BTW. I have NOOO problem with lawyers, the legal profession or Law Professors. When I said ‘sleazy lawyers’ I was describing a distinct class of Lawyer and not a blanket label.

    What would you do to reduce what most people perceive as a rapacious tort system that can be used to attack and punish the innocent or the ignorant to the same degree as it punishes the negligent and outright malicious and that results in a situation where a ladder has 3′ worth of warnings and directions how to use it on the side rails?

    jakee308 (e1996a)

  47. Civil lawyers are ruining this country

    Yes, but not alone – a lack of public common sense, or rather a healthy respect for personal responsibility, plays as big a role. Add to that the craven fear of lawsuits that makes us all like sheep.

    Amphipolis (b120ce)

  48. Uh, I mean a lack of a healthy respect for personal responsibility…

    Amphipolis (b120ce)

  49. Having done a bit of civil defense …

    1) Poor people sue;
    2) During tough economic times more people sue;
    3) Some cultural backgrounds and ethnicities sue more or less than others;
    4) Chemically dependent people are a guaranteed lawsuit.

    nk (db4a41)

  50. I don’t disagree with the idea that the plaintiffs’ bar has ruined this country.

    However, why is it that we’ve allowed judges to remain on the bench that support this crap and what happened to the common man who sitting on the jury was supposed to interject the common sense that should have rejected this nonsense?

    SPQR (26be8b)

  51. Agree with ken (#2) It’s not the lawyers, it’s the judges and laws.

    Len (143e4c)

  52. Here’s one that will make your skin crawl

    A girl gets into an accident while driving in excess of 70 mph on the wrong side of the freeway, in an apparent suicide attempt. She kills a mother and teen-aged child in the other car. Now she is suing the deceased woman, claiming her reckless driving caused the accident.

    It’s enough to make you want to tar and feather every civil lawyer in the country.

    Some chump (e84e27)

  53. I think the movie “The Incredibles” touched on this issue in a way that we haven’t seen addressed in our MSM before, or since. We keep the exceptional children from becoming exceptional, while we keep the normal children from becoming normal – and all in the name of but it’s for the children!


    To this day, both love rock climber and fixed gear cycling. Why can’t they golf?

    I was a Cub Scout and later on a Boy Scout, and there was never any doubt about the possible dangers when we went on week – long hikes above 10,000 feet in the Rockies. I took a number of adventure travel trips in the 90’s, and each one required you to read and sign forms usually totalling over 25 pages of release of liability statements. Unreal, but at least those forms made it crystal clear to the participants that if you wished to take on the activity, you’d better be prepared for the possiblity (however slight) of something nasty occuring. I don’t do those much anymore, primarily because I’m older (and hopefully wiser) and I’m responsible to someone else now. I wussed out on a Heli – Skiing trip a few years ago, and have never regretted the decision.

    Dmac (d61c0d)

  54. Your lack of regret stems from not knowing how freaking fun it is, Dmac.

    JD (0d0a58)

  55. they used to have diving boards. When’s the last time you saw a diving board?

    I’m not arguing your basic point, but I don’t know what you are talking about here. I don’t know of any public pool in my area that doesn’t have a diving board. If the pool has a deep end, that is.

    Suburban Scarecrow (dd4cdc)

  56. Perhaps, JD – but it was that same outfitter where three skiers died later that year because of an avalanche. They operate in British Columbia, and that kind of “accident” happens quite frequently during that particular activity, it would appear. I’m not talking about heli – skiing outside of Vail and those kinds of locales, this is in areas in which there are no ski runs for hundreds of miles in either direction. I’m only at the intermediate level (notwithstanding claims to the contrary from my friends who live in Aspen and Snowmass), so I know what my true limitations are in that regard. Nothing wrong with testing your limits, but it’s a fine line at times, and that activity seemed to exceed it.

    Dmac (d61c0d)

  57. Understood. I have done that in Park City and Whistler, and loved it loved it loved it loved it loved it loved it. But I way overestimate my abilities and consistently fail to live up to said overmisestimation of same. 😉

    JD (0d0a58)

  58. Hey, as long as you don’t break your legs or suffer a severe concussion, you’re good to go, IMHO.

    Dmac (d61c0d)

  59. Beldar’s observations are interesting.

    When our third child was born the doctor botched the cleanup procedure after the birth. Wife went in to the six weeks check and within twelve hours was in emergency surgery to keep from bleeding out. Very scary, we came awfully close to losing her – I had the infant child and our 2 &4 year old at home waiting by the phone for updates. We were new to the area and had no one to help us. The doc called and advised all was okay and I pointedly asked him if it was a screw up related to the birth. He of course wouldn’t comment but when she went back a month later for followup the doctor who delivered our child saw her and apologized for what she went through.
    I was just thankful that God had let my wife live and although some people suggested we should sue we never even contacted a lawyer. Why would I insult God by trying to cash in on it was kind of my mindset. Both of us like to think that other mothers the doctor treated got extra attention to ensure clean up was done effectively.
    My point is that the trial lawyers wouldn’t be so busy if people were less willing to sue over everything.
    Recently my son had a very minor fender bender which he was cited for. the other driver contacted a doctor and one of the lawyers (the man with the hat is a clue) the next morning. Interestingly, our insurance rep said they prefer it when someone contacts the lawyers because it takes the emotion out of the process. Still doesn’t take away the slight anxiety that we could be sued if the person feels whatever is offered is not enough….

    VOR2 (847e86)

  60. VOR2,

    Lady comes into my office. On the third baby her doctor delivered, he left a cesarian scar. She was upset she could not wear a bikini anymore. She wanted me to sue him. She’s some kind of tenth generation Northwest Chicagoan.

    Her husband calls me. He’s a Greek immigrant. He says, “This doctor delivered three perfect babies for us. Tell my wife you are not taking the case.” I was not going to, anyway.

    nk (db4a41)

  61. Beldar, from what I’ve seen, “Loser Pays” refers to if the plaintiff fails to succeed in their suit, then the Plaintiff pays the defendants fees. There’s a lot of hidden context in the phrase and for the purposes of precision, it would be better to be termed “Losing Plaintiff pays all costs” but that’s not as catchy as “loser pays”.

    I think this is the answer. In this country, justice should only be reserved for those able to pay for it.

    Personally, I am just digging the why can’t people just accept negligence, as a quick search of Google leads to a longer and better summary of the article and notes that the school failed to place the recommended amount of mulch around the equipment:

    The U.S. Consumer Product Safety Commission sets playground safety guidelines. The current guidelines for swings require a protective layer of sand, pea gravel, wood mulch, wood chips or recycled rubber that equals twice the height of the swing in each direction. That means if a swing is 7 feet long, a layer of ground material is required 14 feet in front and 14 feet in the back. The safety standards also call for a depth of at least 9 inches.

    Cabell County uses wood mulch on its playgrounds, but it is biodegradable and washes away when it rains, said Tim Stewart, safety manager for Cabell County Schools. That makes it difficult to comply with national safety standards, he said.

    So, gee, you don’t perform the safety measures which are common knowledge, which get two kids hurt, and then are shocked when people sue?

    Still, no doubt the wingnut, oligarchical, invariably wrong dufuses at IBD would run with it or why former doctors and insurance executives would just suggest the kids parents “eat cake” and shut up.

    Such looking beyond the simple also reminds me why I wouldn’t want to work in criminal law.

    timb (449046)

  62. timb–

    Since we are all trying to learn how to elevate the honest discourse here on Patterico, could you be so kind as to tell us what the equal and mirror opposite expression of “wingnut…invariably wrong dufuses” is, so that we might employ it properly in our posts?

    elissa (5953ce)

  63. Such looking beyond the simple also reminds me why I wouldn’t want to work in criminal law.

    Most hilarious post ever from Timmah. As if he could actually pass a bar exam – but someone should ask him about the stalking laws in his state.

    Dmac (d61c0d)

  64. timb, thanks for bringing civility back to Patterico.com.

    I haven’t been on a swingset in decades, but when I was, they were just in the ground, with grass. I never got hurt and this is not unsafe.

    You point to a safer condition as evidence it was reckless to have the set in the grass, but I don’t think that’s fair. There’s always a safer condition. Was it safe, just sitting in the grass? Yes. Just because someone got hurt, being reckless and childish doesn’t mean it wasn’t reasonably safe. Some kids (my favorite ones, usually) will find a way to take risks and defy safety, and those kids will learn how to manage risk against injury.

    This latter lesson is worthwhile. I think a reasonable approach is to find a middle ground. Play equipment that isn’t so safe as to push them to find risk elsewhere, without being so unsafe.

    the swingset in the grass is a great example of this middle ground.

    I suspect you’re wrong about the simplicity in my POV.

    Dustin (b54cdc)

  65. I don’t think timmah EVER passes a bar.

    Icy Texan (01c5c3)

  66. MD in Philly (#41 — 9/3/2010 @ 3:17 am) asked:

    “So, Beldar, are you arguing that everything is fine the way it is? That there is no room for improvement?? Or just that when the issue is examined closely it is not as simple to improve as some would like (though you feel things could be improved?)

    The latter is much closer to my position. There are reasons why things are as they are, and the so-called “American rule” on attorneys’ fees (which really is no longer a rule, it’s so riddled with exceptions and variations based on subject-matter and place) didn’t just come out of nowhere. It had sound reasons behind it to begin with and there are non-trivial reasons not to change it; and the alternatives to it that have been proposed, including a number of “Loser Pays” systems, have their own problems. The existing system has an incredible number of variables, including some that are subtle and others that are effectively hidden to us, and a wholesale abandonment of it and replacement with something else is very, very likely to have unforeseen and entirely unintended consequences.

    I’m more receptive in general to more carefully targeted and incremental tort reform programs. The effects from the “Proposition 12” tort reform measure that Texans passed in 2003, for example, are just now becoming apparent, but my subjective impression is that they’ve accomplished a substantial diminution in frivolous lawsuits; as an imperfect but useful objective measure, liability insurance rates state-wide are down, especially for previously imperiled professionals like ob/gyns. Prop 12’s damages caps are themselves blunt tools that are essentially arbitrary, and I have no doubt that on the margin, the Prop 12 changes have deterred some number of genuinely meritorious claims. But they’ve avoided some of the serious collateral problems that would accompany just about any “Loser Pays” system.

    jakee308 (#46 — 9/3/2010 @ 5:43 am) wrote:

    Beldar, from what I’ve seen, “Loser Pays” refers to if the plaintiff fails to succeed in their suit, then the Plaintiff pays the defendants fees. There’s a lot of hidden context in the phrase and for the purposes of precision, it would be better to be termed “Losing Plaintiff pays all costs” but that’s not as catchy as “loser pays”.

    Sure there would be all sorts of instances (depending on how the law was written) of unfairness but isn’t what we have already unfair?

    I’m trying to be true to Patterico’s new standards of civility for commenters, but did you bother to read any of the admittedly long comments I’ve already left on this thread? And are you really going to use “Life’s unfair, so we might as well screw everybody without making any attempt at fairness” as your justification? Yeah, I think you did.

    Look, it’s not even simple deciding whether a plaintiff or a defendant has actually “won” — even using 20/20 hindsight after a jury verdict, resulting judgment, and resolution of all appeals. Suppose the pretrial settlement demand was $800k, the pretrial offer was $100k (which the plaintiff rejected), and the actual verdict was for only $5k. Is that the sort of winning plaintiff you want to encourage by awarding his fees?

    Oh, sorry, you didn’t mean “Loser Pays,” you meant “Plaintiff always pays his own, and pays the defendants’ fees when he loses.” Well, I’m here to tell you that from both clients’ points of view, it’s the defendant who actually “won” that case by insisting on a trial, but even your radically unbalanced and asymmetric version of “Loser Pays” wouldn’t permit him to recover.

    Beldar (ce0136)

  67. I really don’t think the lawyers are the problem here.

    I mean: lawyers are to some degree acting as tools, swords to be wielded by those who desire a particular outcome and want expert assistance in achieving it.

    The root of the problem is an unwillingness to accept that sometimes accidents happen without anyone actually being at fault — both on the part of the injured and on the part of the jurors.

    There’s no such thing as perfect safety, and there’s a degree to which beyond a certain point, additional improvements simply come at too high a cost to be justified.

    But nobody who’s hurt wants to accept that, and jurors don’t want to think that way.

    aphrael (d282ac)

  68. I havee noticed the removal of high dives from pools and varous equipment from playgrounds after lawsuits over the years.

    What suprises me is the introduction of skateboard parks (at least here in Colorado). There must be dozens of them built in the last decade or so in the Denver area at public parks.

    It seems to be a liability lawyer’s dream. Just an observation.

    pepster (99f969)

  69. christoph (#36 — 9/3/2010 @ 12:42 am and #39 — 9/3/2010 @ 2:27 am): I’m no expert in Canadian law, but I’ve had substantial brushes with it — enough to confirm that there are slightly different versions of “Loser Pays” in Quebec and the other provinces.

    Quebec’s “Loser Pays” is of course based on the Code Napoleon rather than English common law. My exposure to it is more recent: A couple of years ago, I had a Houston-based client that has a wholly owned subsidiary in Edmonton, Alberta Province. My client had done tons of business with the Houston and Calgary, Alberta-based subsidiary of a French company, but the transactions were all in U.S. dollars, the main North American operations for both sides were in Houston, there was no doubt that the Texas courts had jurisdiction over both the Houston and Calgary-based subsidiaries of our opponent, and all the relevant witnesses lived here. So Houston is where I filed suit when a dispute between the two sides couldn’t be resolved out of court. We’d duly served both the Houston-based and Calgary-based companies, and we fully expected them to counterclaim — they claimed they were owed money on a net basis — here in Houston.

    The French parent company indeed decided to countersue. But — with classic Gallic arrogance — they decided to have their Calgary-based subsidiary countersue us in Montreal, Quebec, literally on the other side of North America, simply because it would be easier for them to find French-speaking lawyers there with whom they’d be more comfortable. And it would also require my side to find and pay for lawyers somewhere new and relatively inconvenient. They didn’t even have an office in Quebec; none of the goods had passed through Quebec, and the only remote factual connection was that their U.S. and Canadian customs broker (whose actions weren’t in dispute) had its home office in Montreal.

    Through very capable but expensive Montreal counsel, we asked the Quebec court to dismiss our opponent’s lawsuit based on the fact that there was a prior pending case in Houston in which the issues had already been fully joined. We also asserted that my client wasn’t properly subject to the Quebec courts’ personal jurisdiction.

    I asked our Montreal counsel what we might hope to recover under the Quebec “Loser Pays” rule if we won on our motions and the case there was dismissed. The answer was disappointing, but no surprise: the actual fees and expenses my client was paying out of pocket for his (very capable) services wouldn’t be awarded or even considered. Instead, best case, we’d get something that included only a tiny fraction of what it actually cost my client to defend what we considered to be a thoroughly abusive lawsuit there. It would have worked out to about 10-15% of what we’d actually spent in Montreal, and the way it would have been calculated more closely approximated what we’d consider “taxable court costs” here in the U.S. than our actual fees and expenses there. (Even here in the U.S., the prevailing party is already typically awarded taxable court costs.)

    So in that example of litigation abuse, one long-standing and well-established version of “Loser Pays” acted as no deterrent at all. It was a joke, a non-factor.

    Beldar (ce0136)

  70. Good lord, I bring up the stalking thing and then Timmah later goes after JD on another thread – again. So much for good intentions, Patterico.

    Dmac (d61c0d)

  71. Thanks, Beldar, for sharing that experience. It is enlightening. I’m glad the Quebec judge saw reason and dismissed in your client’s favour.

    The only comment I have to add is — as you well know and alluded to — the other nine provinces and three territories with laws based on English Common Law may be substantially different (or not: I really have no idea).

    Christoph (8ec277)

  72. First, I agree with just about everything Beldar says.

    Second, it is generally not the lawyers’ fault. I do a bit of plaintiff’s work. If a plaintiff came to me with a PI case where he had a justifiable claim under existing law, why wouldn’t I take the case? If I turn it down, some other lawyer will take it. If you don’t want that particular kind of suit brought, it seems to me that you should talk about changing the substantive law so it isn’t a “justifiable claim” anymore.

    Third, on the “loser pays” suggestions, a lot of times there is no way the plaintiff can afford the defense fees. I represent some people who have had their claim for disability insurance benefits denied. Sure, some such people may be frauds or malingers, but in some cases the denial is completely outrageous. (Need an example? Look at this decision by Judge Tevrizian (a Reagan appointee)). A lot of these people are a broke as they can be, and a “loser pays” rule would surely keep many of them out of court.

    Roscoe (ef3593)

  73. If a plaintiff came to me with a PI case where he had a justifiable claim under existing law, why wouldn’t I take the case?

    With all due respect, perhaps you wouldn’t take it if you didn’t exist. I could better phrase that as: fewer lawyers means less access to ‘justice’ of this kind. It means lawyers can pick better cases.

    I’m sure this isn’t perfectly accurate, but I wish there were fewer law schools, with smaller class sizes in many cases. Lawyers would be paid better, and hopefully take more work pro bono, increasing access to justice in certain cases, but making prospective clients have a harder time finding a lawyer who will take any old case.

    Making it harder for people to sue eachother might force many situations to resolve in a different way. In this case, for example, by learning about personal responsibility and not attacking one’s community (that’s what you’re doing when you sue your school over something like this, IMO).

    As things are, there are huge numbers of lawyers who need cases to make a living, and why shouldn’t they take a case like this?

    Dustin (b54cdc)

  74. Dustin (#72 — 9/3/2010 @ 2:21 pm): There are indeed too many lawyers. In the midst of a bad national economy, the supply of new lawyers vastly exceeds the existing demand for legal services, and new law school graduates are especially suffering as a result. You can read about this quite literally every day at blogs like Above the Law, the Volokh Conspiracy, and even InstaPundit.

    The short-term effect of the over-supply is, unfortunately, to drive even more lawyers into non-hourly rate practices, and many of them will become plaintiffs’ personal injury contingent fee lawyers. The oversupply of those will also, in the short term and at the margins, expend the number of questionable claims being pursued in court. But in the long term, and even in the middle term, the market will have its way, and the supply will be driven back down to meet the legitimate market-based demand, whether there are any changes in tort law or not.

    Beldar (ce0136)

  75. Beldar – that is one of the reasons that i’m very, very glad to be a night student who never stopped working his day job.

    aphrael (d282ac)

  76. INAL, so I may be wrong about this, but it seems to me that the practice of law is dependent on the memorization of facts and dates along with rules. In other words, it’s the sort of occupation which cries out for computerization and a downsizing of its workforce.

    The biggest obstacle to this happening is that law is effectively a guild system, and one with immense power and influence.

    But technically (as opposed to legally, socially, and politically) there is little reason why many lawyers cannot be replaced by software, as has already been done in several other occupations.

    Subotai (a935a0)

  77. memorization of facts and dates along with rules.

    It’s a discipline which is dependant on memorizing facts and rules and then constructing arguments as to why this set of facts is different from that set of facts and therefore the rules should apply differently.

    This would not lend itself well to computerization. (Says a guy who has worked as a computer programmer for a decade and a half and who is currently in law school).

    law is effectively a guild system

    That I would agree with.

    aphrael (d282ac)

  78. Dustin wrote:

    With all due respect, perhaps you wouldn’t take it if you didn’t exist. I could better phrase that as: fewer lawyers means less access to ‘justice’ of this kind. It means lawyers can pick better cases.

    I’m sure this isn’t perfectly accurate, but I wish there were fewer law schools, with smaller class sizes in many cases. Lawyers would be paid better, and hopefully take more work pro bono, increasing access to justice in certain cases, but making prospective clients have a harder time finding a lawyer who will take any old case.

    I already have my ticket, so placing limits on the numbers of new lawyers would only make life easier for me. Nonetheless, Beldar is right, the number of lawyers is set by market forces, and using government power to interfere with the market is probably not the right answer.

    But, in a larger sense, I think you missed my point. The problem of “frivolous lawsuits” isn’t a big one, because lawyers who bring lawsuits that are really frivolous generally don’t stay in business long. The real problem is with lawsuits that should be frivolous, but aren’t. If you want to stop these types of lawsuits (and I can give you examples), you need to change the law that permits these types of suits to be profitable.

    Roscoe (ef3593)

  79. law is effectively a guild system

    No. It is a guarantee that there is the highest standard of competence, professionalism, and ethics.

    I have clients who think I am a fixer, because I get their cases dismissed within a minute of walking up to the bench. They don’t know that I have credibility with the prosecutor and the judge and everything I say to them is the truth that I will prove should a trial occur.

    nk (db4a41)

  80. “But technically (as opposed to legally, socially, and politically) there is little reason why many lawyers cannot be replaced by software, as has already been done in several other occupations.”

    Subotai – In my last job I frequently drafted legal agreements and contracts before running them by my General Counsel for a final blessing. It was partly a function of experience. Once you’ve seen enough of the type of contract or agreement you are working with, you know the provision that you both want and don’t want and can get comfortable negotiating, but I would not execute anything without a lawyer reviewing it.

    daleyrocks (940075)

  81. No. It is a guarantee that there is the highest standard of competence, professionalism, and ethics.

    Funny how members of the guild all think that way. No doubt the buggy-makers guild would have said something much like that, as would the United Auto Workers.

    So, how often do members of the guild get kicked out for failing to live up to those “highest standard of competence, professionalism, and ethics”?

    Subotai (a935a0)

  82. It’s a discipline which is dependant on memorizing facts and rules and then constructing arguments as to why this set of facts is different from that set of facts and therefore the rules should apply differently.

    But you are not supposed to be be allowed to simply construct arguments out of whole cloth. If you want to argue to the judge that the rules should apply differently, that means arguing that Smith vs Jones should be followed in your case and not Doe vs Roe. At least in theory, and for arguments outside the SCOTUS, judges are supposed to follow precedent and not make new law based on your arguments, not matter how clever and persuasive they may be.

    Subotai (a935a0)

  83. judges are supposed to follow precedent and not make new law based on your arguments

    Sure.

    But that particular old law doesn’t necessarily apply to my facts, because my facts are different, and if you look at the reasoning used to make that conclusion, and the reasoning used to make this other conclusion over here, you’ll see that the outcome given my facts should be different.

    That’s not making new law.

    aphrael (d282ac)

  84. No doubt the buggy-makers guild would have said something much like that, as would the United Auto Workers.

    Heh!

    I’ve had this argument before and I’m not doing it again.

    People who cannot build a buggy or a car think they’re experts on the law.

    Fine. I’m not going there again.

    nk (db4a41)

  85. Good to see you around again, nk.

    Leviticus (30ac20)

  86. I’m sorry, I missed the first part of your comment:

    the practice of law is dependent on the memorization of facts and dates along with rules

    Not for the most part. That’s what books are for. We look things up. The practice of law is a way. A way of thought, a way of behavior.

    You are right on the rules part. What makes a lawyer is his adherence to the rules.

    nk (db4a41)

  87. Thank you, Leviticus.

    nk (db4a41)

  88. You are right on the rules part. What makes a lawyer is his adherence to the rules.

    Computers are far better at adhering to rules than is any human.

    I’ve had this argument before and I’m not doing it again.

    See, a computer could not say one thing and do the opposite like this. It takes somebody expensively schooled in the practice of law ..

    Subotai (a935a0)

  89. at particular old law doesn’t necessarily apply to my facts, because my facts are different, and if you look at the reasoning used to make that conclusion, and the reasoning used to make this other conclusion over here, you’ll see that the outcome given my facts should be different.

    That’s not making new law.

    That sounds awfully similar to what I said above, that you argue to the judge that the proper precedent in your case is Smith vs Jones rather than Doe vs Roe, as the opposng lawyer is arguing.

    Now, if you are arguing to the judge that there is no precedent for your case, that’s a different matter. But that’s the very rare case.

    Subotai (a935a0)

  90. That’s not making new law.

    I recall from previous discussions that there is almost nothing a judge can do which you would ever characterize as making law. Lets not get into that question again here.

    Subotai (a935a0)

  91. Beldar:

    “The short-term effect of the over-supply is, unfortunately, to drive even more lawyers into non-hourly rate practices, and many of them will become plaintiffs’ personal injury contingent fee lawyers. The oversupply of those will also, in the short term and at the margins, expend the number of questionable claims being pursued in court. But in the long term, and even in the middle term, the market will have its way, and the supply will be driven back down to meet the legitimate market-based demand, whether there are any changes in tort law or not.”

    Then why does America have far more lawyers per capita than any other country (with Brazil coming close and I gather, from talking with my friends, that it’s a pretty litigious society)?

    Christoph (8ec277)

  92. The playground at my grade school was blacktop, on which rested the monkeybars, jungle gym, swings, and slide. The district administrators should have been jailed for endangering the lives of every child that went through that school.

    JD (8ded14)

  93. Then why does America have far more lawyers per capita than any other country (with Brazil coming close and I gather, from talking with my friends, that it’s a pretty litigious society)?

    Comment by Christoph

    Markets aren’t instantly perfect.

    In fact, it makes a lot of sense that this would happen. Any school can post completely BS numbers for employment statistics because of the way US News accepts documentation (they are, somehow, the de facto authority on the topic). It’s not expensive to make a law school and people can borrow a ton of money to fund their education.

    It’s a recipe for a bubble, and I think Beldar is right that it will burst. The solution would be to make it harder to get loans, or some kind of control on the number of law schools (you’d think the Bar would love to do this, to serve their lawyers being scarce, but my understanding is that the people profiting from law tier schools and the bar leadership are often the same folks).

    RE Brazil, they may be headed for a few bubbles too.

    Either way, I greatly appreciate Beldar’s insights.

    Dustin (b54cdc)

  94. law tier = low tier.

    Which I believe are borderline scams, for the most part.

    Dustin (b54cdc)

  95. School safety manager Tim Stewart

    This guy has a job because of this type of litigation. So what if the school district has one or two less teachers since the Safety Manager has important tasks like removing inanimate objects that lack enough diversity or claims of racial victim-hood.

    We are doomed. Time to check out, find like minded individuals, and start over.

    Highpockets (adaced)

  96. By definition, yes, over-supply means more lawyers per capita than the current level of demand will support. That’s a short-term situation, as the market adjusts; and at the margins (which, right now, are 2010 graduates waiting on their bar results as they view their $150k student loans that can’t even be discharged in bankruptcy), there’s a lot of economic pain. Those of you who hate lawyers collectively, enjoy your schadenfreude.

    Long-term and on average, however, there is still a higher demand for legal services in the U.S. than anywhere else in the world. As to whether it’s a good or bad thing for the demand to be so high, and as to whether we ought to try to suppress the demand through regulating the market, there are good arguments that can be made for either side.

    The tort reform argument, by the way, isn’t new. It’s just been adjusted to modern technology and public sentiment. In the early 20th century, tort reformers thought it was outrageous that an employee maimed in an on-the-job accident could draw state-mandated workers compensation insurance benefits even if the employee’s own negligence caused the accident. “Here we are, paying people who recklessly thrust their arms up to the elbow into their die-stamp machines!” They wanted to maintain the traditional negligence-based tort law in which even 1% contributory negligence could serve as a complete bar to recovery.

    But what the public expected from the civil justice system changed, and legislatures and courts responded. Workers comp laws became universal. Comparative negligence systems replaced the absolute bar of the contributory negligence doctrine. And yeah, jurors’ expectations as to what a “reasonable person/company/school would (or wouldn’t) have done under the same or similar circumstances” have also changed. Many — probably most — juries would now likely agree, with each other and with organizations like the YMCA, that sponsoring diving competitions into shallow pools, while commonplace and unexceptional a few decades ago, now isn’t up to community standards.

    I don’t say any of this to try to discourage or delegitimize those who want tort reform. It’s a superbly legitimate subject for policy debate, and I find it pretty interesting. I don’t think it’s simple, though. And unfortunately, a lot of public argument about the subject is really simplistic, and therefore unhelpful and (to me) uninteresting.

    Beldar (ce0136)

  97. Highpockets (#95 — 9/3/2010 @ 7:08 pm): Who do you want to be responsible, on behalf of the school, for checking to see (just for example) if the school buses are being maintained properly and that the football stands aren’t about to collapse? The Spanish teacher?

    Beldar (ce0136)

  98. It seems to me we all have the freedom and responsibility to refuse to take a specifc job even though it is likely that “someone else will do it”.

    As VOR2 and nk (good to see you) mention at 59 and 60, there are factors at work which help people “count their blessings”, while the likes of John Edwards and others win huge suits because there are deep pockets in the vicinity of something bad happening. It is the common belief among physicians that a lawyer or hospital administrator would never let you say “I’m sorry”, and that your malpractice carrier would be apt to refuse to renew coverage if they knew about it. Nevertheless, it is often bad communication and the suspicion of bad faith that often leads to a malpractice case rather than the actual incident at the center.

    In one way we’re back to John Adams and our government (and legal system) being inadequate except for a virtuous people.

    The neighborhood elementary school where my daughter attended K and 1st had some meetings with the police liason about setting up a parent watch area around the school before and after classes started. The effort didn’t get very far because there was so much, “You can’t do this, you can’t do that” that it felt all we could do was stand and watch a kid getting the crap beat out of them wondering if the police would ever show up. I said, “I’m a doctor, if I see a kid hit by a car and bleeding to death with a lacerated femoral artery, I’m not going to stand there, I’m going to do something about it.” The fellow said, “Well if you do, you’re on your own.” It seemed they were more concerned over liability (someone getting a “Philadelphia lawyer” to sue the school district or the city in front of a “Philadelphia jury”) than doing something worthwhile for the kids. It was very frustrating and disheartening. I think most people went away thinking, “To heck with this, I’ll watch my kids and do what I need to do whether “they” like it or not, and let the others fend for themselves.” The fellow said, “There are no such things as ‘Good Samaritan laws’ “. Never heard that before.

    Beldar, you make it sound like there is already incentive for lawyers not to take frivolous things. maybe there are, and maybe they are effective, but those of us looking from the outside don’t see it.

    MD in Philly (3d3f72)

  99. MD in Philly (#98 — 9/3/2010 @ 8:24 pm):

    Beldar, you make it sound like there is already incentive for lawyers not to take frivolous things. maybe there are, and maybe they are effective, but those of us looking from the outside don’t see it.

    The single biggest disincentive against frivolous litigation by contingent-fee plaintiffs personal injury lawyers is that they lose their investment — both of lawyer time and of out-of-pocket expenses — when they lose outright. And most frivolous cases end up losing if they’re taken to trial, despite the impression one gets from the press. One of the truest nuggets of plaintiffs PI lawyer wisdom is this: “You make your money off the cases you turn down.” (It’s a backhanded way of saying that if you aren’t careful about the cases you take on a contingent fee basis, you’ll lose your shirt.)

    Lord have mercy on all of us if this screen didn’t exist — because there are an incredible number of people who want to sue for the most outrageously lame and unbelievable claims. You think you’ve heard of crazy lawsuits, and I’m sure you have. But pick the ten craziest you’ve ever heard — and I can top them just out of the clients I’ve turned away within the last three months.

    But here’s the rub: It’s often pretty hard in real life to sort out the “frivolous” cases from the merely “thin” ones. Lawyers (like physicians and other professionals) have ethical obligations to try to remain objective. That’s sometimes hard to balance against the competing ethical obligation to be “zealous within the bounds of the law” in representing one’s clients. Lawyers who mostly do plaintiffs PI work also tend to adopt a fairly paranoid anti-corporate mindset (and yeah, that often goes along with liberal politics), which further compromises their objectivity. And their usual targets, as a class, are themselves subject to factors that tend to influence their objectivity. All these things combine to color, very dramatically, most plaintiffs PI lawyers’ views as to what makes a “frivolous lawsuit” quite different from, for example, most physicians’ views on that same topic.

    So misjudgments get made, sometimes with awful consequences.

    I mentioned before that I’ve done lots more defense work than plaintiffs work in general. It has been the very rare (and very sophisticated) defense client whom I’ve just vindicated in court whose view has been: “Well, I’m glad we won of course, but you know, that was a non-frivolous case that deserved to be brought for a jury to decide.” Almost all of my clients have thought that the cases against them were frivolous. Some were frivolous; I’ve been lucky to have clients who could see the long view and recognize that you have to stick to a no-offer posture and take those cases to a (winning) verdict to maintain your credibility. By and large, though, the claims I’ve gone to trial on have not been “frivolous,” but rather the result of sincere disagreements (typically because one side has mis-evaluated something very complicated or perhaps very subjective).

    All of this begs the question of whether the existing disincentives are effective enough, or if they should instead be tweaked. I’m the first to agree that lots of abusive lawsuits are still brought, so I can sympathize with those who are looking for new and stronger tweaks. I’m just very traditional — ahem, conservative — and I’ve very leery of unintended consequences from well-intentioned but misguided tinkering. The rights and interests involved — on both sides — are awfully important. And I’m very skeptical of people who think it’s so simple, they’ve got it all figured out, and they have a new solution for us. I’ve never met anyone clever enough to actually perform on that promise, and the people I’ve seen try have generally screwed the pooch pretty hard.

    Beldar (ce0136)

  100. A great class today with Professor Beldar. Thanks! And that is NOT sarcasm.

    That also doesn’t mean I completely agree with the teacher. “But pick the ten craziest you’ve ever heard — and I can top them just out of the clients I’ve turned away within the last three months.” Unfortunately, there is a generous supply of other attorneys, as has been noted above. So how many of those crazy lawsuits were picked up by a less talented or less scrupulous attorney in the expectation that insurance companies will often settle out of court for at least something just to avoid the hassle?

    You see, just like the doctors that we want our lawyers to prosecute, some lawyers manage to just barely squeak by the bar exam. Some really have little or no talent, and less wisdom. (The kind that Grisham likes to write about) And they’re always waiting there at the bottom of the pool to scoop up the cases that would otherwise sink out of sight.

    Gesundheit (aab7c6)

  101. At least… so it seems to me. I confess I have no statistics to prove how many such cases there are. Only the crazy anecdotal evidence that is driving everyone else to make lawyer jokes.

    And Vivian, golf is not necessarily the answer. My younger brothers did some pretty crazy things with golf.

    And now I’ll probably have to tell my two boys to stop playing the game they invented. They call it “gun golf.”

    Gesundheit (aab7c6)

  102. Beldar,

    Thank you for your kind and thoughtful responses and taking the time to compose them. I agree with you completely that unintended consequences are a huge issue that should make us all think before we act, especially in large-scale policy decisions. I certainly realize why it may not be as easy to change some things in the healthcare system as those outside of it (or those inside when we become the recipient) would like, and can assume the same reality exists in law.

    That said, among my top ten was a judgement against Temple Hospital for giving a person a MRI scan that “took away her psychic powers”, and a libel/slander lawsuit that by common sense standards has no merit (because everything that was said or printed is true by public record!), but the crooked multi-millionaire has the money and influence to get a lawyer to pursue the case and destroy people’s lives anyway.

    From my perspective perhaps the bigger problem is “threat of lawsuit intimidation”, including out of court settlements that “will be cheaper than taking the case to court” and successfully defending the charge. (Such as major banks leveraged into providing mortgages that were poor business decisions to avoid discrimination litigation.) Perhaps that is less of a reality than I and others perceive it to be.

    I suppose if lawyers had to spend time representing plaintiffs and defendants on various cases they would find it easier to have a more “balanced” view, but I think it would be onerous to require such a thing, and from an efficiency and “skillfulness” point of view, most people have good reason to limit the breadth of their work.

    Gesundheit- remember the beer commercials years ago that featured “full contact golf”, where the fellow’s putt was interrupted by a swarm of football players aiming for him?

    MD in Philly (3d3f72)

  103. MD in Philly wrote:

    Beldar, you make it sound like there is already incentive for lawyers not to take frivolous things. maybe there are, and maybe they are effective, but those of us looking from the outside don’t see it.

    MD, as I noted in an earlier comment, the problem here is defining what constitutes a “frivolous” lawsuit. I see a frivolous lawsuit as one where the plaintiff has no realistic chance of a recovery under the law and the facts. These cases (like the MRI psychic you wrote about) are relatively rare, because no lawyer could stay in business if he kept taking them.

    However, what most people think of a “frivolous lawsuit” is one that should be worthless, but unfortunately is not. For example there the wrongful death action against the LAPD for killing one of the crooks in the Hollywood Shootout (where two guys held off the LAPD for hours with automatic weapons and body armor) that was brought by Patterico’s buddy Yagman. A case like this should be frivolous, but if Yagman had convinced the jury to award even one dollar to his clients, federal law would required LA to pay him hundreds of thousands of dollar in attorney fees.

    If you want to stop these kinds of suits, it isn’t enough to change the moral character of lawyers, you need to change the law to keep lawsuits like this from being profitable.

    Roscoe (7065e1)

  104. The little park in Sierra Madre near the post office used to have some fun swings, slides, rotating platform, and other fun things. I took my kids there when they were little. Now it’s quite domesticated and boring… perhaps for liability reasons? If kids grow up overprotected, how will they learn some character and how to deal with life’s adversities which are certainly more serious than a scraped knee?

    Mike (9f035a)

  105. wingnut…invariably wrong dufuses”

    Elisa, I think it would be “moonbat…always incorrect morons.”

    Seriously, if one cannot criticize the IBD for masquerading as anything more than a mouthpiece for a neo-feudal class of billionaires, then what can one criticize?

    In the case at hand the implication they chose to foster (under the department headline “Over-lawyered”) is that this is an outrage, when any further reading shows it was a reaction to previous negligence on the part of the schools.

    Using a half-reported story to advance the “Tort reform” crowd is basically part of either being “invariably wrong” or being evil. Personally, I’ll go with the former. Since, if you want to find obnoxious lawyers pursuing ridiculous tort claims, one generally needs only to walk into a courthouse. On balance, though, tort reform is a balancer of disparate economic interests and the last recourse for folks who can not pay $1500 to retain a lawyer.

    timb (449046)

  106. Roscoe-

    Thank you for the specific reply. You make an excellent point over the issue of what makes a frivolous lawsuit by whose standard.

    Making certain types of inappropriate litigation unprofitable would certainly decrease their existence, such as anti-SLAPP legislation in some states. In the case I’m aware of here in PA, such legislation would help; but I also think a lawyer should be ashamed for punishing a “whistle blower” who did a public service just because someone will pay them to do it. Willingness to do a job against one’s general principles because you’ll get paid well is not a characteristic of a professional with integrity.

    MD in Philly (3d3f72)


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