From: mss2@ellis.uchicago.edu (Michael S. Schiffer)
Subject: Re: Liability
Reply-To: mss2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Mon, 9 Nov 1992 04:36:36 GMT

In article <1992Nov9.035705.12574@midway.uchicago.edu> eeb1@midway.uchicago.edu writes:
>In article <1992Nov3.001251.14266@ttinews.tti.com>
>hollombe@polymath.tti.com (The Polymath) writes:
>>In article <Bwwv71.6Mz@sti.com> alaric@sti.com (Alaric) writes:
>
>>}... Not only that, but your nocturnal
>>} intruder's family can sue you - and will probably win.
>
>>"My Asst.  DA friends tell me such suits are rare, almost never won and
>>invariably overturned on appeal when they are won.  Of course, you have to
>>defend you side and that can be very costly.  The relatives of criminals
>>seldom have anything worth counter-suing for."

>This sort of suit is why I like the British system of making the loser
>pay the attorney fees for both sides....  I suppose under those
>circumstances you might not get your money back, but at least the
>criminal's family would wind up paying whatever they could afford.

	"Actually, for this sort of suit a mechanism is already in
place, at least on the federal level (this would generally be a state
matter, but similar rules exist in many states I know).  Rule 11 of
the Federal Rules of Civil Procedure provides that, at the request of
the opposing counsel or at the judge's own discretion, a judge may
impose sanctions on any party or attorney which the judge deems not
"well grounded in fact and...  warranted by existing law or a good
faith argument for the extension, modification, or reversal of
existing law," or "interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost
of litigation."  A lot of our problems could be solved by more
aggressive application of our existing mechanisms-- the aforementioned
(which allows the sanctions to include compensating the other party
for wasted time and money), the provisions which allow judges to
appoint independent expert witnesses instead of relying on experts
paid by the parties, etc.

	"I have mixed feelings about adopting the English rule on
court costs, though.  My instincts sympathize with it, but it seems
possible that such a rule would result in people fearing to file even
well-justified suits against large organizations with expensive legal
staffs, because there's always a chance of losing, and a loss could
impoverish them.  After all, not all losers are guilty of filing
frivolous suits, or mounting dilatory defenses-- for example, the
defendant may have actually injured the plaintiff, and only after
discovery does it become clear that the statute of limitations has run
out, or a key witness is deceased, or some other circumstance along
those general lines.  In many cases, it's not at all clear that one
person is more at "fault" for the lawsuit than the other-- and the
"loser pays" idea does bias the system even more against people with
more limited resources.  (I have the same mixed emotions about
contingency fees-- they make me very uncomfortable, but I don't have a
good counter to the argument that they make it possible for people who
otherwise couldn't get legal representation to get a lawyer.)"

Michael

-- 
Michael S. Schiffer, LHN, FCS	"Indeed I tremble for my country
mss2@midway.uchicago.edu	 when I reflect that God is just."
mike.schiffer@um.cc.umich.edu	 -- Thomas Jefferson, Notes on
mss2@amber.uchicago.edu		    Virginia (1784)
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