John Stossel is at it again. Criticizing the trial bar and lawsuits without substantiating the same. About a year ago (11 months to be exact), I wrote about John Stossel – The Wrestler. In that blog, I asked Mr. Stossel to respond. I tweeted John Stossel to respond. I facebooked John Stossel to respond. Did he respond? Of course not.
These people who talk about frivolous lawsuits never substantiate their claims. They have bought into a corporate and insurance media blitz which has persuaded the public’s perception of lawsuits and our judicial system. It couldn’t be further from the truth.
It is more difficult now than ever to get a fair civil trial. We walk into the courtroom as plaintiffs with a strike against us. Juries are thinking our clients, the victims, want something for nothing in every case. Does that ever happen? Of course, but it is VERY rare.
The deck is stacked against the individual who is injured or defrauded. First and foremost, our system is set up so that the Plaintiff has to carry the burden of proof. It is much harder to prove a case from a plaintiff’s perspective than it is to defend one. Second, defendants have several methods for opposing a claim: Motion for Summary Judgment, Motion for a New Trial or remittitur, and an appeal. This gives a defendant a way to continue fighting a plaintiff for years.
Additionally, in Alabama, a jury of 12 people have to UNANIMOUSLY rule in the plaintiff’s favor. Do you know how hard it is to get twelve people to rule in your favor? Many people are under the impression that Plaintiffs select the jury they want and get millions. The process works as follows: you get 24-36 potential jurors, and each side gets a turn to question them to see who can be fair and impartial, NOT who will rule in your favor. If it’s 24, each side gets six strikes, and you are left with your twelve jurors. You De-select the jury. You don’t select them.
If John Stossel really wants to show true journalism, let him interview judges about frivolous lawsuits and how many they see. There is a Rule of Civil Procedure called "Rule 11", and it says:
Signing of pleadings, motions, or other papers.
The signature of an attorney constitutes a certificate by the attorney that the attorney has read the pleading, motion, or other paper; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. As provided in Rule 30(g) of the Alabama Rules of Judicial Administration, an electronic signature is a “signature” under these Rules. If a pleading, motion, or other paper is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading, motion, or other paper had not been served. For a willful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.
This Rule allows a Judge to sanction attorneys for bringing Frivolous claims. Additionally, there is another Rule of Civil Procedure which protects Defendants and not Plaintiffs:
Offer of judgment.
At any time more than fifteen (15) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than ten (10) days, prior to the commencement of hearings to determine the amount or extent of liability.
So, a Defendant can make an offer of Judgment, but a Plaintiff cannot. Is that fair?
Let me give you a recent real live example: A client hired us to represent them in a car wreck claim. We made a claim against the insured. After evaluating the claim, we valued the case at $5,000. The defendant’s insurance carrier never made an offer of settlement. In such a situation, your insurance carrier does not need your permission to settle. So, because we never reached any settlement, we filed suit. On the day of trial, they offered to settle the case for approximately $5,000. We countered with $7,500. They offered $5,500, and their insured, the at-fault party, personally offered to pay $1,000 of his own money to keep a judgment from being rendered against him, so we settled for a total of $6,500 ($5,500 from the insurance company and $1,000 from their own insured). The insurance company could have prevented litigation and their own client from paying $1,000 if they settled for a reasonable amount to begin with, but they were unreasonable, not the plaintiff or the plaintiff’s attorney. Much litigation is promoted by insurance companies trying to dictate what a fair settlement would be. Insurance carriers promote much more litigation than trial attorneys.
These are the stories you don’t hear. But, on June 27, at 8:00 cst (9:00 est) on HBO, there will be a documentary called "Hot Coffee" which will illustrate the truth about the system. It will anger you as an individual. Here is the trailer:
- Please watch!