Are lawsuits really such a hassle?
September 24, 2011 3:45 PM   Subscribe

If lawsuits are so sticky and messy, why do I read about so many ridiculous court cases?

I've been advised by an attorney to avoid litigation if at all possible because the process is horrible, according to him. If lawsuits are so costly and time-consuming, then I'm just wondering why people get sued for things like shouting profanities at bicyclists? I mean, who has the drive, and money, to undertake cumbersome legal actions over such trifling matters? In this sue-happy country, people constantly threaten to sue each other as if it's no big deal. Yet, attorneys I have spoken with seem to think litigation is a Very Big Deal. I'm confused. Clarification anyone?
posted by zagyzebra to Law & Government (26 answers total) 2 users marked this as a favorite
Litigation is a Very Big Deal, but there is also the potential for Very Big Money at the end?
posted by troublesome at 3:51 PM on September 24, 2011

Litigation can be a Very Big Deal if it progresses past the initial stage. A lot of lawsuits are filed in the hopes of extracting a quick settlement before discovery (which is in large part what I assume your attorney was referring to as "the process") begins in earnest.

Plaintiffs' lawyers often take cases they think they can win on a contingency basis, which explains where some people get the drive and the money to sue (i.e., it costs them very little).

Some of it is a personality thing. Most people would not sue over having bad words shouted at them (which is why you don't see a slew of such lawsuits), but some people are more apt to attempt to give legal force to their outrage than others (which is why you see a few, and roll your eyes at them).
posted by eugenen at 3:53 PM on September 24, 2011 [2 favorites]

It's basically an equation. The expected value of a legal outcome (say, 25% chance of a million so $250,000) less legal fees and the opportunity cost of the plaintiff's time must add up to more than zero. Adjust up or down as necessary for factors like stress, the desire for fame or revenge, ethical considerations.

However, generally "avoid litigation at all possible" is said to defendants, not plaintiffs, e.g., McDonald's is advised to avoid litigation, not the woman who spilled her coffee.
posted by michaelh at 3:54 PM on September 24, 2011

Lawsuits are sticky and messy for the parties in dispute - but, they can be very profitable to the lawyers. Many lawyers survive on lawsuits - to them, that same stick messy is bread and butter.

The lawsuits are driven by lawyers chasing a percentage of the settlement.
posted by Flood at 3:55 PM on September 24, 2011 [1 favorite]

The process of litigating a lawsuit is difficult and expensive. The process of filing a lawsuit is easy and cheap. That means that a lot of people who have no intention of doing the former will do the latter, intending some result other than litigation. People file lawsuits to scare people into backing down, to extort money, to harass people, to display their righteous indignation, to regain control over a situation they feel has gotten out of control, to get the attention of third parties, and for myriad other reasons. Very few of those cases ever go to trial, and many of them are fairly efficiently dismissed in the very early stages.
posted by decathecting at 3:58 PM on September 24, 2011 [3 favorites]

In some of the ridiculous lawsuits that actually go to trial, I get the sense that what you're seeing is a game of chicken gone wrong. Both sides stand their ground hoping the other side will back down or settle or whatever — and then, oh crap, both sides stood their ground, now we have to take this shit to court and it's a pain in everyone's ass.
posted by nebulawindphone at 4:01 PM on September 24, 2011 [1 favorite]

There's also a difference between non-lawyers saying "I'll sue you" or "you should sue them" and lawyers who actually know what it takes saying "it's not worth it to sue". The advice is different because the knowledge behind the advice is different.
posted by the young rope-rider at 4:03 PM on September 24, 2011 [3 favorites]

Some people like it, and make their living that way.

Some people just like it.

From The Hound of the Baskervilles: "His passion is for the British law, and he has spent a large fortune in litigation. He fights for the mere pleasure of fighting and is equally ready to take up either side of a question, so that it is no wonder that he has found it a costly amusement. Sometimes he will shut up a right of way and defy the parish to make him open it. At others he will with his own hands tear down some other man's gate and declare that a path has existed there from time immemorial, defying the owner to prosecute him for trespass. He is learned in old manorial and communal rights, and he applies his knowledge sometimes in favour of the villagers of Fernworthy and sometimes against them, so that he is periodically either carried in triumph down the village street or else burned in effigy, according to his latest exploit. He is said to have about seven lawsuits upon his hands at present, which will probably swallow up the remainder of his fortune and so draw his sting and leave him harmless for the future."
posted by pH Indicating Socks at 4:08 PM on September 24, 2011 [3 favorites]

Response by poster: Just to clarify, I've been given several different legal opinions. Two attorneys I've spoken to have said they would be happy to take the case on a contingency basis.

On the other hand, insurance pros have told me I should attempt to settle directly with the insurance companies myself, and avoid litigation or legal intervention.

I am the defendant. Without getting into specifics, my insurance company filed a liability claim with the other party's insurance company, and the claim was accepted. Liability has been established. Now it boils down to three choices: 1) I represent my own claim to the other party's insurance company, 2) An attorney represents me to the other party's insurance company for a percentage of the settlement or 3) I sue the other party, who then sues the insurance companies for bad faith, and the attorney will do this on contingency.

At least, that's my understanding of it. The attorneys say the insurance companies (there are three involved) will try to lowball everything. So far mine, and I am happy to say this on record -- State Farm -- has been nothing but fair and cooperative. The problems are likely to occur with the other party's insurance companies.

I'm sorry if this is cryptic, but I do not wish to provide details at present.
posted by zagyzebra at 4:11 PM on September 24, 2011

There are many jerks in this world.
Some of those jerks are quite stupid - but believe they have a detailed understanding of the law and legal system that they do not.
Some of those of those stupid jerks also feel incredibly entitled.

They're the ones that start the idiotic lawsuits. The ones that think that they are owed something, and want vengeance. Stupid, petty, arrogant people. Bonus points for crazy.

Legal action is a tedious, painful process that can also be quite traumatic for the parties involved, especially if those parties are individuals.

IMO, it should always be the dispute resolution method of last resort.
posted by His thoughts were red thoughts at 4:22 PM on September 24, 2011 [1 favorite]

Well, in that case, I think absolutely everyone agrees that you don't bring a knife to a gunfight. A regular person, even with Right on his side, has no chance against a lawyer.
posted by pH Indicating Socks at 4:24 PM on September 24, 2011 [1 favorite]

Some of the cases you hear about happen simply because one or more of the parties is completely, irrationally obstinate.
posted by alopez at 4:27 PM on September 24, 2011

After your cryptic follow-up, can you clarify what your question is?

If you're the defendant, why would you be getting money and why would a lawyer be taking your case on a contingency basis? That doesn't make sense. If you're the defendant and the insurance companies have worked everything out so that you're not personally liable for anything, what are you fighting over?

I don't know whether you can trust the opinions of the lawyers you talked to, but without any more information, it's really not possible for you to get a more reliable opinion here.
posted by J. Wilson at 4:36 PM on September 24, 2011

You hear about ridiculous cases so often for two reasons:

1. Because they are unusual, and the media covers these unusual cases in order to garner outrage and increase readership. Many leave out pertinent facts, many are intentionally vague and end up being broadly misunderstood. Some really are ridiculous, but not very many.

2. Some are just plain made up. Those goony emails you get with outrageous stories of outrageous lawsuits are almost all fabricated, in part or in whole, and are clearly designed to sway public support for tort reform measures.

So really, this thing you hear about our horrifically litigious society is mostly insurance company propaganda. Do not try to reconcile this with anything. It's fiction.

I'm still confused about your case specifically. If you're the defendant, why are you getting a settlement? (On preview: yeah, what J. Wilson said.)

You really can't trust your insurance company's assessment, but you can probably only trust an attorney's assessment to a point. If they're offering to take the case on contingency, that does mean they believe you will prevail and that they'll be well remunerated for their work; so that's a good sign.

But without something more specific, I don't think anyone can tell you.
posted by ernielundquist at 4:41 PM on September 24, 2011 [4 favorites]

For lawyers, a trial gives them the potential to make money.
For people who work at insurance companies, a trial is a pain in the ass and because they're on salary, they have no desire to deal with it.

Again, different perspectives = different advice.
posted by the young rope-rider at 4:45 PM on September 24, 2011

Response by poster: J. Wilson - Oh so sorry - I am not the defendant. I am the victim.
posted by zagyzebra at 4:57 PM on September 24, 2011

In this sue-happy country, people constantly threaten to sue each other as if it's no big deal.

Which country are you referring to? Metafilter is international, and you don't mention a country in your post or profile. Assuming you mean the United States, where did you get this information? In my civil procedure class in law school we were told that only 5% of potential legal claims lead to lawsuits, though it's very difficult to estimate this. Even that estimate seems high. There are so many reasons people avoid bringing lawsuits even though they could have a good claim on the merits. I'll bet almost everyone I know has had a potential legal claim against someone at some point, but I've almost never heard of anyone I know being a party to a lawsuit (aside from basic family stuff like getting a divorce). So I question your whole premise that we (if we = United States) are "sue-happy."
posted by John Cohen at 5:06 PM on September 24, 2011 [2 favorites]

1. People often threaten to sue with no intention of actually doing so, and/or without having actually assessed the validity of their claims.
2. Suing for small amounts does happen frequently. It's easy to do and not very onerous. Small claims court is a burden on your time, but you can generally appear pro se without going through the typical procedures of litigation.
3. People aren't rational; or, more precisely, people don't always care only about the economic costs and benefits of a course of action when it comes to dispute resolution. Sometimes people want to win, and win publicly. Sometimes people pursue lawsuits that, due to the cost of litigation, will result in financial losses even if they win.
posted by dixiecupdrinking at 5:18 PM on September 24, 2011

So someone harmed you in a way that involves your insurance company? If State Farm will pay for the loss and you're happy with the amount they're willing to pay, take it and let them fight it out with the tortfeasor's insurance company on their own dime. You'll only be involved if it gets to the point where depositions and/or testimony at trial is required, which it almost certainly won't.

If my reading of the situation is correct, that's one of the main benefits of being insured.

If you don't have coverage for this loss with State Farm, you want an attorney to do the talking with the opposing insurance company. If it's something simple like property damage where responsibility isn't disputed, the magnitude of the loss is easily calculated, and there are no other complicating factors (bodily injury, EED, whatever), you can always see what the other insurance company offers before retaining an attorney, but you do need to be very careful about what you say.

If the loss is difficult to calculate or there are any other complications, hire an attorney. Preferably the not-sleazy one.
posted by wierdo at 5:46 PM on September 24, 2011

And to answer the question in your title: Yes, they are often a hassle.
posted by wierdo at 5:47 PM on September 24, 2011

Best answer: I think the answer to your question lies in understanding the stages of litigation and the policies that underly that system. Under code pleading systems (formerly used in federal courts, but some states still use this system), you have to plead your claim much more thoroughly and carefully at the time of filing, including facts in support of your claim, which required more investigation into facts before the claim was filed. However, under notice pleading, you don't have to plead the facts that support your claim, just a short and plain statement of jurisdiction, the claim, and the relief. Under notice pleading, the system puts a lot of emphasis on the discovery and factfinding stage of litigation rather than just pleading, so it's relatively easy for a case to get past an early motion to dismiss for failure to state a claim as long as a plaintiff is able to articulate a colorable legal argument and alleges a set of facts that, if proven, would entitle a plaintiff to the relief requested. This is one of the reasons litigation is so expensive: discovery is expensive, and while attorneys working contingency cases may be motivated to conduct discovery as efficiently as possible, a corporate attorney on an hourly fee agreement isn't going to have that same motivation to conduct discovery efficiently. However, after discovery has been conducted, then you'll get another round of dispositive motions (motions for summary judgment) in which a party, usually the defendant, moves the court to grant summary judgment by alleging that based upon the undisputed facts that there is no genuine issue of material fact as to a particular element of a legal claim. This is where the silly claims that you hear about are likely to get knocked out.

Thus, because there is typically a long period of several months (or in some cases, years) between the initial suit being filed and the dispositive motion, you may hear a lot of media coverage about a silly or outrageous suit being filed, but not necessarily hear the follow up coverage about the suit being dismissed.

Litigation is expensive, and an insurance company knows this; consequently, if you have a strong claim and can demonstrate the strength of the claim to the insurer, they will be incentived to settle with you rather than pay for litigation, especially if it's clear that what you're asking is well under the amount of the costs of the litigation that they're staring down. Sure, you could negotiate yourself directly with the insurance company without an attorney, but if you have an attorney, they know you're lawyered up and therefore ready to file. Otherwise, to borrow the metaphor above, it's like showing up to a gunfight without a gun in your holster and saying "I'm serious guys, I will totally take a shot at you."
posted by Dr. Zira at 6:00 PM on September 24, 2011

Response by poster: Dr. Zira - Thank you very much for the last line in your post. The only reason I haven't decided to retain an attorney to represent my interests to TWO insurance companies, is because a family friend who is pretty high up in the insurance industry has said that I should try to settle with the insurance company myself first, knowing the attorney will likely take a sizable percentage (even though we've found one in the Israeli community with a good track record willing to take this on for 10% above and beyond the initial payment made to me by my insurance company).

The first insurance company has gone on record saying, "We wish to prevent our client from getting involved in litigation." The second insurance company, however, has said, "You've got to do what you've got to do."

It's very tempting to hire an attorney, I must say. The only thing preventing me from doing so is the advice of the insurance executive who has said, "Wait."
posted by zagyzebra at 6:11 PM on September 24, 2011

You might want to factor in the fact that 10% paid to an attorney on a successful recovery in a pre-litigation settlement may give you more money in your pocket than the 30% + that an attorney will require in the context of litigation, plus you may still have to front the costs and expenses, and those can add up into the thousands fairly quickly in discovery.

If you don't have an attorney, you may not be fully aware of how you need to prepare to negotiation. For example, an attorney representing you is going to know that it's important to find out the limits of the policy(ies) in play, because an attorney is going to know that's an important piece of info to have for assessing the cost-benefit analysis of litigation by figuring out whether or not you believe a potential claim is above or under those policy limits. All of that to say: If the claim is strong it and it looks like there is a risk of potential recovery above the policy limits, the insurer will be extra motivated to mitigate the risk of recovery by settling prior to litigation. Knowing this can give you an advantage because you know you can afford to take a more aggressive stance. An insurer may be more likely to give another attorney this information if asked during a pre-settlement negotiation process because they know that the other attorney is going to already be aware of the rules of that jurisdiction regarding early disclosure of the policies.

I understand the advice of your friend the insurance executive, who is trying to save you money because he thinks your claim is strong enough to get a settlement out of the insurer on your own. However, the amount of what you can get from a settlement at the negotiation table may be greatly improved if you have someone representing you who could more accurately predict the potential value of your claim, which is your bargaining chip to obtain the settlement. I'm not talking just about valuing damages, I'm talking about the amount of damages versus the costs and risks of pursuing that action through litigation. Is your insurance company friend an attorney who can accurately assess the strengths and weaknesses of your claim? You need to have a very realistic sense of this prior to going into a negotiation if you're going to have the best possible recovery.
posted by Dr. Zira at 6:58 PM on September 24, 2011

I know the Mcdonald's coffee thing has become a cliche, but those of you on the "frivolous lawsuits" bandwagon might want to watch the documentary Hot Coffee.
posted by moammargaret at 7:20 PM on September 24, 2011 [2 favorites]

When I was injured as the result of somebody else's negligence, the settlement I got with my lawyer's assistance, even after deducting his 30%, was MUCH larger than the settlement I would have gotten without his assistance.

YMMV. My advice ever since then, when it comes up, has been Lawyer lawyer lawyer.
posted by Lexica at 7:38 PM on September 24, 2011

Some businesses litigate cases that, considered in isolation, should be settled or abandoned, as part of a very smart overall strategy of being seen as hard to mess with. A reputation as an aggressive litigant can discourage prospective plaintiffs hoping for quick pay-offs, and cause prospective defendants to knuckle under to demands, knowing that a response of "sue me" will be answered with "sure."
posted by MattD at 8:37 AM on September 25, 2011

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