What Do Lawsuits Have in Common with Predators?

Hi Readers! Here’s a really thought-provoking piece about the OTHER fear haunting parents — and schools and parks departments and congregations and day care centers and scouting groups and…you get the idea. Read on! – L
Dear Free-Range Kids: This blog is all about how the fear of injury, disease, abduction, or low IQ has turned parents into helicopters and locked our kids inside.  After reading “Commandment Five: Don’t Think Like A Lawyer” in Lenore’s (utterly awesome and enlightening) book, Free Range Kids, I was prompted to write to her about a different fear: the fear of lawsuits. I am a lawyer, and today I want to help debunk the myth that our country is a collection of litigious jerks against whom we must protect ourselves diligently (a myth which persists even though most of us have never actually met one of these litigious jerks).  First, I want to talk about lawsuits in general, and then I’ll talk about lawsuits and parenting.

Things to know about lawsuits in general

I am a law clerk for a judge in a trial court. “Trial court” just means we don’t handle appeals–we’re the lowest level court, which all judicial matters have to go through first. My courtroom handles a civil docket, which means we handle handle almost everything that isn’t divorce or criminal matters–this predominantly means lawsuits. I have been in this job for two years, and I have seen over 2,000 individual cases just in my courtroom alone. I also chat with the other law clerks in the other courtrooms about our most interesting cases.  Frequently, we talk about the most  ridiculous ones. What’s most striking to me, though, is how infrequently those cases come up.  Keep in mind that each of us has approximately 1,000 cases a year, and 300 going at any one time.

In my time at court, I have seen perhaps 2 cases that were truly bunk.  These cases really stick out.  Of all my cases, that means that less than one percent of of them should never have been filed; one-tenth of one percent, in fact.  Most of my cases have some value.  And guess what?  Both of these bunk cases resolved in favor of the defense.  I’ll do you one better — neither were about crazy parents suing for stuff that happened (or could have happened) to their kids, nor were they brought against parents.  They were about adults doing stupid things and then suing to paper over their embarrassing mistakes.  Point being: the risk of a lawsuit by or against a parent is simply not that great.

The best stats I could find regarding the filing of bad lawsuits in general is here: http://users.polisci.wisc.edu/kritzer/research/rule11/rule11Jud.htm.  After doing the math from these statistics, I (with help from my engineer husband) determined that in only 28 out of every 10,000 cases were sanctions imposed on lawyers for bringing a frivolous case.  Once again, that’s less than 1%.

These are not perfect statistics, but it appears that they’re the best we have.  They also don’t speak to the issue directly at hand (i.e., how often parents, and not just people in general, sue for ridiculous reasons), but we can probably at least accept that parents just aren’t running to lawyers every time their kid stubs a toe.  Just as with all these other fears that Lenore highlights, the media hypes up the craziest cases, and the rest of us come away with the feeling that everyone is just looking for an excuse to sue. But that isn’t really the case.

Do people sue when they really have no reason to?  Yes.  But it’s such a tiny, fractional risk, it’s practically not worth worrying about.

If you do get sued, keep this in mind: when you finally get in front of a jury (which may not ever happen — the statistic thrown around in law school is that 94% of cases don’t ever get that far), the jury frequently assumes that the plaintiff is sue-crazy.  It’s unfortunate, but people really believe that we live in an era where everyone hires an attorney for every little bump.  And even if the plaintiff convinces them that their case has value, they get just enough money to handle medical bills and court costs – IF they’re lucky enough to get all that covered at all.  Contrary to popular belief, plaintiffs don’t just get an arbitrary amount of money according to how much a jury thinks they deserve — they have to prove it up, and show how much money an accident has cost them.  No one is getting an Italian villa, and even if a jury does try to award exorbitant damages, judges are able to reduce an unfair damage award.  Furthermore, most organizations have insurance in order to defend against lawsuits, and many people who may have children in their home are already covered by homeowners insurance.  So while a lawsuit is not fun, and can cause considerable expense and stress, it is also not likely to be the end of the world.

Lawsuits as they relate to parenting

I wish I could give more concrete stats about unnecessary lawsuits brought by or against parents, but they don’t exist.  (Although I’m sure that at this very moment, some anal retentive lawyer is carefully picking through every single case ever filed in the United States to compile them for you.)  I think we can agree that the statistics would probably follow along the same lines as the more general statistics listed above.  In other words, such a tiny risk that you shouldn’t even bother to worry about it.

But what if the school/daycare/supervising parent does make a mistake, a serious one, and a lawsuit is warranted?  We’re talking here not about frivolous suits, but the ones that could actually result in money awarded.  Obviously, this happens – but not as frequently as people think.  Please remember: (1) your child is unlikely to get injured or abducted in the first place, and (2) most people are reasonable and don’t want to be embroiled in a draining lawsuit even if they do have a really good case.  To repeat: even when parents may have a perfectly good lawsuit, that doesn’t mean they’re going to go to a lawyer.  I bet most of you have never met someone who was involved in one of these suits.  I asked around, and NONE of my fellow law clerks (about 20 of them), NOR the Judge that I work for (who has been on the bench for over 20 years), has seen a case brought by a parent to recover for an everyday childhood accident or violence by a stranger, even ones that have merit.  (I’m not including car accidents and medical malpractice – the types of things that are just as likely to injure adults.)  This is despite the fact that our court encompasses a very large school district.  That doesn’t mean these kinds of lawsuits don’t happen, but it does mean they don’t happen very much.  Most parents just want their kids to be ok, and maybe want medical bills paid for if it has come to that; they aren’t out to make your life miserable.

As a lawyer, I need to sign off by saying that I am NOT your attorney, and none of this constitutes legal advice.  But I hope it does make you feel a little bit better about the world your kids are living in.  The bottom line is that people aren’t as litigious as you’d think, and lawsuits by parents for normal childhood injuries are rare.

So what can we do about this massive, unwarranted fear of lawsuits?  We’d love to hear your ideas.

All the best! —Tiffany Gengelbach

Here are some ideas for helping to cut down on the fear of lawsuits:

(1) Try to spread the word that lawsuits really aren’t that common.  People love to talk about our litigious society, but that really isn’t true.  Most people would rather forego a completely reasonable lawsuit than be labeled “litigious” and go through the very difficult process that a lawsuit entails.  While you’re at it, maybe point out that lawsuits are seriously no fun, and are extremely stressful, time-consuming, and expensive – maybe that will discourage unnecessary lawsuits!
(2) Shame the heck out of the people who bring frivolous lawsuits (as opposed to constantly suggesting that “you should sue for that!!”, which I see all the time on internet comment boards).  The blog “Lowering the Bar” is a great resource for this: http://www.loweringthebar.net/
(3) Where you have the influence or power, try to get organizations to self-insure so that they aren’t subject to arbitrary rules by insurance companies.  Even though you pay them to defend you against lawsuits, insurance companies are afraid of having to spend their money on an unpredictable suit even though it probably won’t ever materialize.  It’s not their fault – they need to protect their business just like everyone else.  Still, they are looking out for every single little thing that could cause a lawsuit, no matter how unlikely.  This kind of thinking encourages fear and contributes to the feeling that a lawsuit is just a matter of time.
(4) Ask your state legislature to provide greater governmental immunity to schools for injuries.
(5) Ask your state legislature to add rules saying that parties who lose in court have to pay attorneys fees.  Right now, under the “American Rule,” each party must pay his own attorneys’ fees, except in certain limited circumstances.  Under the “English Rule,” the loser pays.  The English Rule could cut down on filing lawsuits and encourage people to talk things out ahead of time.
(6) Don’t be afraid to apologize when you’ve made someone upset.  Though you shouldn’t admit that you are liable for any damages, just connecting on a personal level can do wonders to avoid lawsuits.  A simple, “I’m so sorry little Kimmie got hurt,” is often a great way to soften someone.

36 Responses

  1. Wow. Great letter, I’m going to keep a copy of this one. Reminding us once again that what you hear in the news is unusual, the exception, not the usual. If it was ordinary and usual it would not be news. When these items make it into the paper it is because they are not the norm. A very important reminder.

  2. This is a super post – thanks Tiffany and Lenore.

    In my experience in the UK, the number of cases brought to court is also very low. However, I’m also interested in the number of cases and stats around out-of-court settlements.

    Very often, local authorities and councils will prefer to settle out of court. Solicitors (lawyers) know this and often suggest this as an alternative to going to court.

    I know its a complex situation, but it would be interesting also to find local authorities who are actively choosing NOT to settle out of court and how this affects the numbers of claims.

  3. We did have an incident that “could have” sued.. or at least claimed on their insurance. We chose to not.
    The Daycare allowed 5 – 7 kids to pile on one swing – it broke – our 7yo daughter was on the bottom and suffered a concussion. They didn’t call us about the incident. We picked our two kids up (and our kids were telling us about the excitement). Stepped into the office to inquire – and “oh, yea, we meant to tell you about that”.
    We took her to the hospital and took care of the bills with our own pocketbook. Why? Because kids are kids and stuff happens.
    We did change Day Care centers – for not letting us know.

  4. Ms. Gengelbach’s experience comports with my own — and I have been a practicing attorney in Illinois for more than 30 years, representing (at different times) both plaintiffs and defendants (usually meaning individuals and insurance companies).

    I take exception with a couple of your suggestions, however.

    First, I am adamantly opposed to repeal of the American Rule on litigation costs. Ms. Gengelbach demonstrates that (contrary to the fear-mongering of chamber of commerce-type groups) truly frivolous lawsuits are extremely rare. Sanctions statutes exist in all jurisdictions that I know of to shift the expense on the truly frivolous litigant; that remedy is adequate for what is truly a minor problem. On the other hand, repealing the American Rule in order to curb truly frivolous litigation is like using a nuclear bomb to rid a community of mosquitoes because of the chance that a few of them may be infected with the West Nile virus. It will work… but there will be a great many unintended consequences.

    Second, I disagree with your suggestion to enhance governmental immunity for school systems. Schools operate in loco parentis and should have the same immunity that parents have: Junior can’t sue Mom and Dad because he trips over a loose carpet in the living room; schools likewise should have immunity from ordinary negligence; similarly, Mom and Dad should not be able to sue the school district because Junior slipped on a wet spot in the school hallway where (for example) a janitor wiped up an earlier spill. On the other hand, a teacher or administrator that intentionally injures a student or acts with reckless disregard for a student’s safety should be held accountable. In Illinois, at least, the pendulum has swung too far in favor of a broad reading of our immunity statutes. It is commendable for courts and legislatures to keep the strained finances of state and local governments in mind, but there must be some balance here.

    Finally, to amplify one important point: Persons who are sued (frivolously or otherwise) should immediately tender the suit papers to their insurance carriers. If the suit arises from an auto accident, send the suit papers to your auto liability carrier. On anything else, send the papers to your homeowners (or apartment or condominium) liability carrier. If it’s a boundary dispute, send the papers to your title insurer (you got title insurance in all states, as far as I know, and certainly in Illinois, if you bought a property and took out a mortgage).

    Let the insurer tell you that there’s no coverage. If you get a letter from an attorney threatening suit, don’t wait for the suit, send that letter to your insurer.

    If you fail to do this, you may be jeopardizing your coverage — meaning you might have to pay your own attorney to defend you and pay for any judgment against you.

  5. I’ve personally been on the receiving end of what I considered to be two frivolous lawsuits. One was for a “fender bender” that literally did not even make a scratch on either vehicle. The other was from a lady who tripped on the sidewalk in front of my house. In both cases our insurance paid a settlement. Just because so few of these lawsuits make it to court doesn’t mean that the settlements and insurance payouts are not hurting us all.

  6. Lori W is spot on. Lawsuits have become the new lottery. And just like the lottery, the low odds of actually winning a lawsuit don’t appear to serve as a deterrent, particularly for those who are greedy, lazy and vindictive. Except at least lottery losses hurt no one other than the person buying the ticket.

    Comparing the fear of abductions to the fear of lawsuits isn’t exactly apples to apples either. Unlike abductions, there is an entire system in place to encourage and facilitate lawsuits: A complicated court system; lawyers advertising on every other commercial during the day; liability insurance for everyone from your grandmother to Wal Mart; draconian measures required by insurance companies to prevent lawsuits; and on I could go.

  7. “determined that in only 28 out of every 10,000 cases were sanctions imposed on lawyers for bringing a frivolous case. ”

    which means exactly nothing at all. How many such cases exist where no sanctions were imposed either because the lawyers had buddies protecting them (“you scratch my back, I’ll scratch yours”) or because though frivolous they still led to a verdict in favour of the accusing party?
    I’d venture that if you count those into the equation, the number of frivolous cases is likely much higher.

    Not as high as it is made out to be maybe, but high enough to be of concern.
    Of course most of those are in product liability and medical, places where the big bucks are to be found, and not parents sueing other parents for a few thousand dollars.

  8. “(5) Ask your state legislature to add rules saying that parties who lose in court have to pay attorneys fees. Right now, under the “American Rule,” each party must pay his own attorneys’ fees, except in certain limited circumstances. Under the “English Rule,” the loser pays. The English Rule could cut down on filing lawsuits and encourage people to talk things out ahead of time.”

    That terrifies me. I feel like the person who files should always have to pay their portion. The person defending should get refunded if the court rules in their favor.

    I’m not sure that most people are afraid of lawsuits per say. I’m personally terrified of random other people judging me and potentially calling CPS for parenting decisions that I make. Even if something truly bad doesn’t happen, other people criticizing you can take a toll.

  9. One issue with the letter, this is only in reference to the cases THAT MAKE IT to court. Most insurance companies have a clause that you never go to court, instead it goes to an arbitrator, those cases don’t get counted. More importantly, most insurance companies don’t want to go to court, it is costly, so they choose to offer a settlement to save the costs of going to court. In many cases that do not involve insurance companies, when the lawyer knows that he isn’t going to make much money, the lawyer will advise the client to settle out of court rather than go to trial, suit gets settled, lawyer is more likely to get paid, no court involved, so the info in this letter is worthless, frivolous lawsuits happen every day. Just a majority of them are not handled in the courtroom.

  10. Great article. Another example of how people wrongly assume that if it’s reported in the media, it must be a common occurance. By the very nature of what the press does (reports on things of interest and rarely are common occurrences interesting), the opposite is true.

  11. I always thought “in loco parentis” was a financial/inheritance term.
    It now seems to have broader usage and meaning. How is it established…among organizations, neighbors, volunteers at parks etc? Does it have to be formal written contract or just a spoken agreement? I know, it’s a lawyer question but, just give us an idea and those in need can find a specific answer for their situation.

  12. To be clear, I do not believe a lot of these fears are fears of lawsuits, per se. Rather it is more likely driven by insurance companies’ fear of lawsuits. For instance, one insurer denied home insurance to us because we had a trampoline in the house. If enough of them had done so, the trampoline would have gone. We would have become an example of worst-first thinking. A lot of times when we read about school districts and others acting crazily, it’s most likely that their insurance carrier threatened to jack up their insurance rates unless they prevented the kids from playing, or walking to school or whatever…

  13. Stuff can look legitimate that isn’t. Like the Predators, I think there are a few bad apples. And those bad apples do a lot of damage before being called out and have a high rate of recidivism.

    Do any of these sound frivolous? Smoke damage to a neighbor’s property. Disputes over the position of a property line. A dog biting a child. A challenge to the legitimacy of a will. An emptied estate.

    None of that sounds like a frivolous suit. But the first 3 are just a sampling of the dozens of suits filed against a friend’s family and others by a bad neighbor. The smoke damage came from the neighbors setting my friend’s van on fire. The fence, the family supposedly “moved,” was never moved. The dog, bit in response to this family of trespassers coming over and brutally beating the animal. Then they have the nerve to sue when the dog defended itself.
    The next two… well I have to give lawyers a lot of credit for holding the perpetrator at bay, but it was expensive none the less. The will used to challenge the actual will was one the deceased had pointedly refused to sign. The lawyer (who had created it at the behest of the woman suing, rather than the deceased) spent over a year quietly informing a string of lawyers that the deceased was not his client, and the deceased refused to sign the document. Finally frustrated when no lawyer would file for her, the manipulative woman simply cleaned out the estate, and then claimed her sister did it. Thankfully an officer of the court was with the robbed sibling the day she supposedly robed the place. In fact the half blind “witness” who was misled and put up to making the accusation, mistook the court officer for another relative who was on the other side of the country, thus blowing apart the already strained credibility of the claim.

    All this was settled out of court. That bit about people wanting to avoid court, can bite the innocent as much as it can protect.

    All this, and more from just two people, a friend’s neighbor and my aunt. Some people should be stripped of the right to ever sue again, and these past injustices should be open as possible evidence if they ever get sued.

  14. One of the troubling things not addressed here is that many organizations aren’t just afraid of the costs of losing a lawsuit. They are afraid of the costs of dealing with a lawsuit being filed against them, even if it is settled out of court, arbitrated, or withdrawn. Legal fees can easily mount up to the point where they have a serious impact on the organization’s finances.

    And that, unfortunately, is something that Tort Reform can’t touch one way or another. The only remedy is for organizations to be able to hold out long enough to go to court, win, and have the judge require the plaintiffs to pay the defendants’ legal fees– which, if the plaintiffs have no resources, won’t actually help.

    Are these cases, where arbitration takes place but the defendant suffers due to legal fees, as rare as the lawyer implies? I don’t know. It seems clear that this letter doesn’t address them, though.

  15. Sometimes it isn’t the parents suing whomever owned the property where their child got hurt but the insurance company doing it. I know of at least 3 families where their child got hurt in an accident while playing and the family’s insurance turned around and sued to recoup the money they paid out. (1-child fell off a swing set and broke an arm, 2-child darted out in front of a car and was hit, sorry I forget the third one, but the point was the parents of the children involved had no intention of suing as they were accidents; however, their health insurance company sued the other person to recoup the cost of the ER visit and other subsequent health care expenses.)

  16. The author’s idea number (3) undercuts the thesis of the post.

    Insurance companies’ survival depends on their costs IN AGGREGATE being less than their receipts. Since insurance companies tend to have a large number of customers, their behavior is the appropriate behavior for everyone, because they get as close as is feasible to a true population-average, and the actual expectation value of lawsuits costs/individual.

  17. The school board in my county has never gone to court on frivolous cases but it has paid more than 500,000 a year in settlements to avoid court. Just because the case doesn’t make it into court doesn’t mean it doesn’t exist.

  18. $500,000 a year for how many years? What kinds of bad things are happening in that school district?

  19. Again I am so glad that New Zealand has ACC – the Accident Compensation Corporation. In the seventies we waived our right to sue for accidents in return for universal accident insurance. It’s paid for through levies on car registration, employers and income tax and covers worklplace injuries, sports injuries, injuries from car accidents, everything – If it was an accident it’s covered. ACC also runs risk-minimisation programmes and campaigns to reduce the likelihood of accidents that they will need to pay out on.

    Unfortunately the current government is planning to open up accident insurance to private companies so the awesomeness that is ACC, and the non-litigious culture that goes with it, is under threat.

  20. Software patents disputes rarely reach the courts, but threats of lawsuit are quite common. Companies almost always prefer to pay fees to patent trolls or stronger companies even if they think they did no wrong.

    I think that it is safe to assume that the same thing is going on in other lawsuit types. If you can prove that you was on the safe side, then you can negotiate lower extortion fee. It does not have to go to court, but if it would your chance to win would be higher so you have advantage in negotiation.

    If you are not on the safe side, you are at merci on whatever they ask for as long as it is cheaper then the cost of lawsuit (which is ridiculously expensive).

    If this is the case, then it makes financial sense to try to be on the safe side. Basically, using logic of this article, there is no problem with software patents, because they rarely reach the court.

  21. It’s not so much as lawsuits, but the idea of being sued. It’s just like the fears that many parents have these days. They are unfounded, illogical, and rare, but the simple fact that it does exist (no matter how uncommon) is enough for one person’s fear to spread with the help of media and word of mouth. Lawsuits may be uncommon like the article says, but it only takes a few for the fear to spread. The solution is for people to start using common sense again, and stop having a holier than thou attitude and spreading fear. Which includes responsible journalism and social networking. It’s really that simple. But fear, like anger, affects the mind just like any other drug, it’s addictictive.

  22. This is one of those things like fear of pedophiles – it is so ingrained in our culture that frivolous lawsuits are rampant, that no amount of evidence that they are not will convince those who believe that they are, including many here, that they simply are not.

    First, I have never met a single defendant in a lawsuit who didn’t think that the lawsuit against him was frivolous so take first-hand accounts with a grain of salt. Were the suits truly frivolous? Possibly. Will I base my conclusion on the opinion/description of the sued individual? Absolutely not. The court clerk – who doesn’t care one way or another who wins and actually hears both sides of the story – who wrote the article is a MUCH, MUCH, MUCH better source of the number of truly frivolous lawsuits.

    Second, all these lawsuits are handled on a contingency fee basis, with all the fees fronted by the attorney. Claims like this can cost thousands of dollars and take many days of attorney time. If the case loses – which frivolous lawsuits generally do – the attorney never sees a dime. They are, not only not paid for their time, but also out every single penny they fronted the client. They will never see the thousands of dollars in filing fees, deposition costs, witness fees, medical record fees, employment record fees, etc. that they pay out of their own pocket. How many frivolous lawsuits would you take knowing you are, not only going to spend hours working on them for absolutely no gain (and taking time away from viable cases), but also are going to be out thousands of dollars of your own money in the process?

    Third, there are a few corrupt attorneys just like there are a few bad seeds in any profession. However, most attorneys are decent people who respect their profession and the law and are not looking to intentionally abuse it. Most attorneys are not getting wealthy practicing law. The vast majority make a good bit under 100k a year. Rolling the dice on a bunch of frivolous lawsuits – when they could receive sanctions/bar penalties for doing so – is just not happening.

  23. I’d spread the word that lawsuits aren’t common, but that’s not my experience. I’ve been sued twice over my activities on Wikipedia, both times as one of a group of John Does. Both cases were entirely frivolous, and neither lawsuit got to the point of the Wikimedia Foundation providing the identities of those John Does, but the lawsuits were filed.

  24. I had a neighbor about 15 years ago whose 7 year old son was SEVERELY bitten by another neighbor’s dog that was loose in the neighborhood. The dog took a very sizeable chunk out of the little boy’s calf, and it required pretty extensive medical treatment. Even under these cicumstances, though, the parents didn’t try to sue anyone. They simply had their son taken care of, and then approached the dog owners in goodwill, asking them to cover medical costs and to keep their dog in the yard.

    Unfortunately, the owners of the dog did not even attempt to comply with either of these requests! Instead, they accused the childs parents of assaulting them, and took them to court! At that point, the parents did sue. Ultimately, the parents were found not-guilty of the assault, but also lost their suit against the dog owners. The dog continues to roam free in the neighborhood today.

    I’m not exactly sure what this all exemplifies, except maybe that most people, like those parents, are quite happy not to get a court involved in these kinds of things if they can help it. Also, that it is not so easy to lose a lawsuit for something like this. That child had a large scar on the back of his leg, and that was not enough to even get the dog taken away!

  25. I would like to believe that this is true, but, unfortunately, (1) a law clerk only sees the suits that are filed, not the ones that are threatened. I would argue that hundreds of threatening lawyerly letters are issued for every suit that is filed. When lawyers charge $200 per hour, even simply writing a reply back can be equivalent to losing a lawsuit. (2) The author seems to be only considering totally frivolous suits (hence the statistic on lawyers who get penalized for this). The question is that there is a lot of stuff that has inherent risk, for which one can make a reasonable case that X is liable for Y. The problem is, there are so many places in life where this can break down, it leaves people constantly scared that they are going to get sued for any breakdown in their efforts.

    If I had a dog, and, with no previous record of bad behavior, he bit someone, a lawsuit wouldn’t be *frivolous*, but, providing there weren’t actual damages, it shouldn’t be considered automatic. Things break down. Problems happen. I might screw you over accidentally. Thankfully I live in Oklahoma, which has pretty good laws on this kind of stuff, but still not perfect. One reasonable thing that we have in Oklahoma is that medical malpractice suits cannot be filed if the damage was equivalent to the inherent risk of the treatment. Such sanity-providing legislation can also be very helpful.

  26. If I’m about to file a lawsuit, I will write it so it sounds as non-frivolous as possible. That is the first thing.

    My impressions is that what is considered non-frivolous by American lawyers would be often considered frivolous by non lawyers or in other countries. The cost of lawsuit is huge and possible pay off uncapped.

    The same lawsuit may be considered non-frivolous by lawyers and “just happens sometimes” or “bad luck not deserving huge payment” be common people. The bigger the gap between “common sense” and “lawyer thinking” the bigger the impression that lawsuits are often frivolous.

    So I tried to google data. It was surprisingly hard. All boils down to three questions:
    * How many lawsuits per capita are in USA compared to other countries?
    * Is the number of lawsuits going up?
    * Is the amount of money awarded in those lawsuits going up?
    * Is the cost of lawsuit going up?

    Money questions are important, because the cost plays as big role in management decisions as the frequency of lawsuits.

    The most commonly cited statistic is number of lawyers per capita. It is not too good stat, because lawyers do a lot of other things then just filling lawsuits. Anyway, this is one I found:
    US: 1 lawyer per 265
    Brazil: 1 lawyer per 326
    New Zealand: 1 lawyer per 391
    Spain Lawyers: 1 lawyer per 395
    Italy Lawyers: 1 lawyer per 488
    UK Lawyers: 1 lawyer per 401
    Germany Lawyers:1 lawyer per 593
    France Lawyers:1 lawyer per 1,403

    US is the winner, but those directly behind are not that much worst.

    As for number of lawsuits going up or down, I found only one stat:The number of civil claims, up 12 percent from 1993 to 2002.

    A bit old comparison with Great Britan:
    Olson (1991) notes that USA has 3 times as many lawyers per capita as Great Britan, 10 times the number of lawsuits per capita, 30 to 40 times the number of malpractice suits and 100 the number of product claims.

    So, what I read in it is that the number of USA lawsuits compared to the number of lawsuits in Great Britan was high in nineteens and then it went up 12%. We do not know what happened between 2002 and 2012 and we do not know how much Great Britan lawsuits went up in between.

    People having experience with law system said that their experience is that the lawsuits are the same last years. So I will assume that is stayed the same.

    The const of malpractice insurance is much higher in USA then elsewhere. (lost the link, sorry)

    My conclusion from these data is, that the number of lawsuits in USA is not exactly low. It is certainly higher than the number of lawsuits elsewhere.

    The last point: lawsuits in USA are very expensive and damages potentially infinite. Damages awards are very unpredictable.

    It seems to me that Americans may have reason to be more afraid of lawsuit then people in other countries. It is likely that what is considered OK in other countries may be basis for damages in USA. This difference may shift risk perception of Americans.

  27. Let’s face it, we see lots of headlines about absurd sounding cases (‘Prisoner sues prison services because he couldn’t have an X-box’, ‘Parents sue school for grazed knee’) that make it sound as though they have actually succeeded in getting a payout, when all they’ve done is allegedly brought a case, or maybe even just threatened to.

    Funnily enough, you never heard any follow-up from these cases – because there isn’t any.

  28. Firstly, define “frivolous”. This is all meaningless without a concrete definition of what constitutes frivolous. And that is probably not possible. As others have pointed out, what is frivolous to one party is a serious matter to another (or can look that way on paper). A lawyer has written this. (And no, I don’t think lawyers are inherently bad people. I have FIVE in my immediate family.) The risk of bias in what defines “frivolous” has to be considered. What comes to mind is the McDonald’s hot coffee spill case. Most of the population deems that case and settlement the height of frivolity, but apparently it’s being taught in law schools as a law suit which was reasonable.

    I would agree that most cases are probably settled out of court. For instance, doctor’s insurance just pays the people off who file a suit. Much cheaper that way. I suppose one could even therefore make the assumption that only the craziest suits make it out of the starting block and head to the court at all, because it’s so much cheaper for the insurance company to pay a settlement than go to court. I don’t imagine that they would bother going to court if the other party is asking less than say 5,000, maybe even 10,000, dollars.

  29. Keep in mind one big problem with our legal system, which is that sometimes people NEED to sue. Working-class guy with no health insurance falls and breaks his ankle in a store. Hospital recommends immediate surgery. He has 3 choices:

    1) Refuse the surgery. Months out of work, permanent loss of function in the leg.

    2) Get the surgery. Still out of work a couple months. Forced to file for bankruptcy when hospital bills come due, as he can’t possibly pay them.

    3) Sue the store owner for medical bills and temporary loss of income. Owner’s insurance pays for surgery, rehab and feeds his family until he recovers. Once the break heals, his life continues normally.

    What would YOU do, in that position?

  30. JaneW –

    I’ve been in similar situations, where it was even the fault of the person. I *did not* sue. Because it is unethical. The idea that your situation might bring up a moral dillema for people is precisely the problem. It is assumed in this country that what you don’t have you are free to take. That is precisely what is happening in the scenario you describe, and precisely the reason why lawsuits run rampant. I have a real or perceived need and the opportunity to solve it via a lawsuit which I would not have filed were I not in the needy situation. This shouldn’t even be a question – you should not file. Until we get out of the mentality that our conditions modify what is right and wrong, we will always be at the whim of people who believe that their real or perceived injustices are justification for screwing over other people.

  31. Jonathan–exactly right. If you simply trip, you have no moral right to transfer the cost onto the property owner. If there is a real negligence situation where there was a hazard created, fine. but the other 99% of the time when it was just your clumsiness, not fair.

  32. I agree, except for the part about the “loser pays” attorney fee statutes. Already many justified claims cannot be brought because the injured person can’t afford to hire an attorney. I’m not talking about the big personal injury claims, here – most of those are contingent fee cases and if they’re valid, high-dollar claims, a lawyer can be found — but I am talking about the smaller personal injury claims, contract issues, discrimination claims, and many other cases where the potential recovery isn’t big, but a real wrong has been done. So many wrongdoers, especially big companies, already feel free to just say “so sue me,” because they know it will never happen because litigation is expensive, and the injured person can’t afford to spend a year or more litigating their case. Even if they win, they have to finance the fees up front, and so many people just can’t afford that. And although “loser pays” would help some plaintiffs in that situation, it would deter many more – those who are too afraid to try to pursue their valid, if smallish, claim, lest they be responsible to pay for the 5 corporate attorneys and their vast armies of associates and paralegals who are about to spend the next year or more papering them with enough disclosure requests and motions to deforest the State of Oregon. Meanwhile, the companies wouldn’t fear the loss – the fees they’d have to pay the sole practitioner attorney who is representing the indigent plaintiff are worth the risk — especially if they know that, if they win, they can collect fees for their army of lawyers. So, no, I don’t like the idea of the “loser pays” system. I do, however, like the idea of giving judges discretion to award fees against the loser if they find that the claim or the defense was frivolous or unnecessarily escalated the conflict and drove up the cost of litigation, however.

  33. Oops, strike that second “however” in the last sentence!

  34. The author asserts that, “… while a lawsuit is not fun, and can cause considerable expense and stress, it is also not likely to be the end of the world.” Being sued is not a trivial experience. Yes if you have insurance it protects you from the costs. However, the process itself has a huge cost beyond money. My 19 year old daughter was sued over a traffic accident that happened near her when she had a blowout on the freeway at college. The person sued not only the people in the accident, but also my daughter who was on the side of the road. My daughter was found to be completely free of any fault. Our insurance covered all of our daughter’s expenses. The loser got no monetary reward at all. The problem is that defending a suit like that takes a lot of time and emotional strength. She was in college. Every time she had finals she would have to travel to depositions or proceedings or something would come up. Every time. For several years. That excuse gets old really quick at college. The stress took its toll on her. She was far from home. Her entire college career was overshadowed and consumed by the lawsuit. She lost credits and of course the money she had paid to take the classes. She ended up seriously ill as a direct result of the stress. Many years later she still deals with the medical issues that resulted. I think the toll was unacceptable for a suit that was frivolous and about a trumped up back injury. Even the people who WERE involved in the accident that the lady sued were found not to be at fault. I can’t speak to the question of how often these kinds of suits are filed. But I can say that it happened to our family and it was not without serious, long lasting consequences.

  35. asdf: Total number of civil claims filed is pretty meaningless because a lot of those are debt-collection suits and contract disputes between businesses. You really want the number of personal-injury claims.

    Comparing the number of lawyers per capita between countries often makes the US look misleadingly bad, simply because we’re one of the few Western countries that doesn’t make a formal distinction between solicitors (practitioners of transaction law like real estate closings) and barristers (practitioners of trial law). Essentially all practicing attorneys in the US are admitted to the bar, even though many of them never do litigation. That make the number look high compared to other countries where only those who do litigation are admitted to the bar.

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