Current Litigation

It's not society. When there aren't sufficient checks against frivolous lawsuits, it affords the impression that every idiot in search of a windfall is given permission to take a chance in trying to fool a judge and jury about the truth of obvious matters.

Yup.

The most successful local business last year in our area? An "Accident claim specialist" solicitor who will glady lead you by the hand to the promised land of mega-bucks compensation, whilst simultaneously ordering his newest Bentley and getting a decorating quote for his 16-bed home in the sticks.

Where is the onus on proof of wrongdoing? Surely there would be no ambulance chasing solicitors if they had to do lots and lots of work to prove negligence in the first place? It's a make-a-claim-and-scare-them-into-a-payout culture, and the only people getting stung are the common people. ALL our premiums go up to cover the cost of the greedy "tripped on a 2mm curbstone" claimants.

I don't wish to take away anything from those with genuine need for compensation and financial recourse, but it is a sad reflection of how greedy and lazy some people have become that such practices are now seen as commonplace and, ironically, lucrative trades to venture in to.

IB should have to PROVE wrongdoing before xF is even called to court; before xF spends a single bean on legal fees; there should be no legal acceptance of claims until the plaintiff has invested some time and money in sufficiently convincing the court there is a case to be had.

Cheers,
Shaun :D

PS. I have no legal training or experience - just a big mouth and lots of opinions on things I know little or nothing about!!! lol :D
 
(...) IB should have to PROVE wrongdoing before xF is even called to court; before xF spends a single bean on legal fees; there should be no legal acceptance of claims until the plaintiff has invested some time and money in sufficiently convincing the court there is a case to be had. (...)
Exactly! Why should small businesses risk going bankrupt because a big corporation decides to sue them (for no good reason)? The justice system needs to be revised.
 
IB should have to PROVE wrongdoing before xF is even called to court; before xF spends a single bean on legal fees; there should be no legal acceptance of claims until the plaintiff has invested some time and money in sufficiently convincing the court there is a case to be had.

PS. I have no legal training or experience - just a big mouth and lots of opinions on things I know little or nothing about!!! lol :D

While this might sound great in practice, there are a couple of issues:

a) Courts really don't have the specialist knowledge (or, indeed, all the information on an issue) to decide whether a claim has merits (you would need a whole team of staff experts in every area of law - at great expense!). Most court systems will do some sort of basic checks to check there is a "prima facie case" - i.e. there's some sort of action or issue the other side might have to answer for. This, at least, screens out what I'll affectionately call "the crazies" :)

b) Do you really want to be in the position where the government and government employees start deciding which cases should be accepted? That would lead to all sorts of complaints and issues on its own. With the presumption that cases should be accepted, you avoid the risk of unfair bias.

c) How could courts actually decide this without effectively going through all the evidence? If IB knocks on the door, "I want to lodge a claim", and gave all the details they have, it looks like there's a case to answer for. The only reason you know there isn't a case... is because XenForo got their lawyer to reply and say "here's why there's no case". So you always need this back and forth - which is why you don't immediately jump straight in to a court room setting in front of a judge and argue your case.

The largest expense in a case is usually the actual hearing at the end, in front of the judge (where in the UK, you'd possibly employ an advocate/barrister - someone who specialises in arguing cases in the higher courts - but also have your witnesses, expert witnesses, and the several days/weeks preparation and the several days/weeks for the hearing to actually conclude). This back and forth at the beginning of cases (i.e. this part now!) is actually not that expensive when you compare it against the total cost of taking a case all the way to the end - for xenforo, unfortunately, the international nature of the case will be making it more expensive and complex than most issues.

The current system is far from ideal but I don't think there are really any viable alternatives. What you really want to avoid are situations like this where (in my opinion) the case should have been dismissed in CA for one of the many reasons lodged by xenforo - but cases involving international parties are always difficult and complicated :) Unfortunately, pretty much any/all systems will always rely on the judge taking a decision - and whether he gets it right/wrong will always be debated between the parties!
 
IB should have to PROVE wrongdoing before xF is even called to court; before xF spends a single bean on legal fees; there should be no legal acceptance of claims until the plaintiff has invested some time and money in sufficiently convincing the court there is a case to be had.

I understand what you are saying and the sentiment. It would be great if there were a better system for weeding out suits without merit. But, I wanted to point out that there is some tension here between making the courts accessible but not too accessible.

If you make the plaintiff PROVE a case before the defendant is called to court, well, you have a couple of problems. First, the plaintiff may not be able to prove anything without questioning the defendant. So, the choice at that point is to either take the plaintiff at his word that his claim is correct (and thereby make the whole exercise a rubber stamp or rather pointless) or to require the defendant to answer (which fails the policy desire to make the plaintiff prove wrongdoing before defendant is called to court).

I just see that one of two results emerge. You either have a meaningless "proof" or you end up actually increasing costs by having a "trial" to prove a case before the "Trial" (to prove the case). The latter would just make there be two trials instead of one, make the system more expensive (for everyone), slow things down even further and would not meet the goals of shielding defendants from frivolous suits.

I don't want to put words in your mouth, if I missed your point or misstated it, sorry! I just don't see how to implement the idea without having undesirable effects.

EDIT: Well, the eloquent tickedon said it better than I did...and earlier. Teaches me to take a long time to reply.
 
No, don't worry guys, I appreciate the lengthy sensible replies - my over simplified "wish" monologue was just that, a wish; I realise there has to be some to-and-fro to decide whether there is a "case", it's just the silliness of having to do the thing twice-over that makes the mind boggle.

As you say, so far not massively expensive, so let's hope - at least in the U.S. court - it doesn't go all the way and gets put to bed in the shorter (and cheaper) term!!!

Cheers,
Shaun :D
 
Maybe mandatory arbitration by some means, rather than court?

Interesting....but, what is the advantage of this? That is, how does calling it "arbitration" make it different than "court"? In arbitration, you normally set the rules by agreement. How would this work in advance of the litigation? That is, it would seem that implementing this would require everyone to have an arbitration agreement at the start of any relationship (employer/employee or buyer/seller) or to have universal "arbitration" rules that apply to everyone. The first would not be feasible (just think of the administrative costs of setting this up) and the second....well, it seems it would just change what you call the procedure to adjudicate disputes from "court" to "arbitration."
 
Interesting....but, what is the advantage of this? That is, how does calling it "arbitration" make it different than "court"? In arbitration, you normally set the rules by agreement. How would this work in advance of the litigation? That is, it would seem that implementing this would require everyone to have an arbitration agreement at the start of any relationship (employer/employee or buyer/seller) or to have universal "arbitration" rules that apply to everyone. The first would not be feasible (just think of the administrative costs of setting this up) and the second....well, it seems it would just change what you call the procedure to adjudicate disputes from "court" to "arbitration."

Arbitration wouldn't really be ideal, but, alternative dispute resolution mechanisms - like mediation - are a "big thing" within certain circles in the UK at the moment and there have been various pilots across the country. There are many advantages to this kind of dispute resolution compared to the court system, including the fact that it's much cheaper, usually quicker, and you can agree (or get) a resolution that the court possibly doesn't have the power to give. The reason it can work for both sides is usually that it doesn't cost them more once you take into account the settlement and all the costs - by avoiding the court system, you reduce the length of time you are having to deal with it (so you can focus on your business) and you also reduce expensive legal bills (which while you hope you can recover, you aren't guaranteed to win back from the other side, and that also depends on you winning the case - or indeed, they might not have the funds to pay them back) and so if you have to "give ground" and settle for something lower than you'd hoped or wanted, your net gain is roughly the same (or possibly indeed more) than if you'd pursued the matter through the court to the bitter end.

However, in my opinion and based on what I've read, I agree that it can't work for every situation and so I don't see how making it compulsory for all could work. It seems best suited to issues that aren't yes/no winner takes all (like this), for example: perhaps a company has admitted liability and it's all about deciding the level of compensation to be paid, or, there is a dispute between a landlord and a tenant regarding the return of the deposit (arguing over the costs of cleaning etc... and how much of the deposit should be returned).

ADR is also simpler and cheaper to administer - so as government cuts start hitting around the world, I wouldn't be surprised to see a growth in these kinds of things :)
 
IMHO, the problem stems from a lack of enforcement of the reasonable checks that are in place. An attorney's job is to represent a client and his/her perspective, whether or not you think they will win. There needs to be some wide leeway given since people should have their right to be heard in a court of law. That said, an attorney cannot ethically bring a case to court if he/she has no reasonable basis upon which to believe a client's version of events. Some reasonable due diligence should be performed before filing a case against a defendant to ensure that there is some merit to the plaintiff's claims. Punishment should be in place against both clients and attorneys who clearly do not uphold a reasonableness standard. I'll give you an example.

About 3-4 years ago my father was parking his car in a local neighborhood into one of two available spaces. There was a guy standing in one of them who muttered something in Spanish to my father after he was done. My father figured that he was trying to "hold" both spaces for his friends... whatever, he walked away, nobody was hurt. Three weeks later my father is served with a $2 million lawsuit claiming a neck injury amongst other things I didn't get to see. I don't know if the guy returned and called an ambulance after my father left the scene. I told my Dad to send me the paperwork and I'd have the attorney's head on a pole if he didn't perform due diligence. But since the insurance company's attorney took the case and decided to handle it, I had to stand by the sidelines and wait.

My father was deposed by the other attorney, typical nonsense. When it came time for the deposition of the plaintiff, he never showed -- twice -- and the case was dropped. Any attorney with an IQ of a dolphin should have been able to determine whether this low life's alleged injuries were legitimate and potentially caused by someone parking a car. But this case wasn't about the merits -- it was about trying to extract yet another settlement from an insurance company that doesn't want to spend money litigating a case needlessly that will cost more than its worth. Now the plaintiff is probably judgement proof -- but the PI attorney who probably tries hundreds of these sham cases isn't and should definitely know about this kind of a scam. In such instances, if the attorney had his hands smacked for a significant fine or subject to some type of disciplinary action, this kind of extortion wouldn't happen.
 
There are courts in the US where ADR is "mandatory" in the sense that the parties are referred to an ADR judge to see if resolution is possible. However, the option to pursue ADR is optional at that point. One of the procedures available is for the ADR judge to act as a neutral evaluator where the parties discuss the issues and the ADR judge gives his thoughts on the strengths and weaknesses. This can facilitate early settlement. However, if the parties do not ultimately agree, the case is returned to the assigned judge and nothing presented to or stated by the parties in ADR or the ADR judge's recommendations are ever revealed to the assigned judge.

It used to be the case that in the US all credit card companies put in clauses about arbitration in their agreements. American Arbitration Procedures were used. What ended up happening was that because the credit card companies were paying the arbitrators fees, it turned into a case where most disputes ended favorably for the credit card company (one study said 94% of the time the credit card company won disputes). For years these arbitration agreements were deemed "binding" As a result of much litigation, recently these agreements have come under attack and now it is much easier for the consumer to opt out.

A huge disadvantage to arbitration is that it is not transparent. The arbitrator (or panel) is not held to the same standards as a court in explaining its decision and the review of faulty decisions is often very limited. Of course, there are advantages, as in the process is faster, you have streamlined discovery and "trial" and you have a simpler system.

Okay, after the huge wind-up, I agree with Michael. There are checks on the system in place that are just not enforced as often as they should be. The choke point is often the attorneys. They have a key role in assessing cases early and should be held to the ethical standards and rules of court to do a better job. Unfortunately, the attorneys have a vested interest in suing (that's how they get paid) and you don't want to hammer attorneys who are relying on what appears to be a reasonable claim by the client. (Just an off the cuff observation...part of the "failure" of this system is that it is almost like a "zero-defects" environment. It is a big deal if an attorney is sanctioned for ethical failures. So, many judges and others are reluctant to hammer an attorney if it is not a clear and willful violation of the rules...with that head cover in place, many attorneys "inch" closer to the ethical line). Monetary sanctions are another mechanism that could be instituted better with regard to meritless claims. This is not often used, though.
 
Amused at the momentum and popularity that our Wacky Shirt Friday photo has gained here! Be nice boys!

Really... what are your views on xenForo programming code... Do you think it is unique or some copy and paste.... You should joining vB lic.mem forum and it seems to be the same laughable results....

So how are you Mike Anders.... are you here to learn what real coding looks like or are you wanting to learn it first?

Might see this post getting the poop scoop....
 
Amused at the momentum and popularity that our Wacky Shirt Friday photo has gained here! Be nice boys!
Were you guys the only ones who played Wacky Shirt Friday? You should post a photo with other contestants.

BTW, I am the proud winner of an Ugly Christmas Sweater contest. I will not be sharing those photos.
 
Tell Brisco to join and post so we can be nice to him, mention to him that I have all the logs where you guys were reading my forum over the last year or so too !!
Anthony you do know that b.b. does not actually post any of his own thoughts on any sites.... His secretary gets paid to read and reply to responses... check out vb blog on b.b. and you can see that the two blog posting are from two people and not from b.b. directly.

Were you guys the only ones who played Wacky Shirt Friday? You should post a photo with other contestants.

BTW, I am the proud winner of an Ugly Christmas Sweater contest. I will not be sharing those photos.

He is the first on the right...
 
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