Offline
People have long talked about the need for tort reform - but how do people respond when they see tort reform in action? Does it feel right? Does it strike the balance between discouraging frivolous or weak lawsuits without discouraging legitimate ones?
One of the basic concepts in tort reform is that there are too many tort lawsuits with little to no legal foundation. But there is no guardian at the door at the court clerk's office and these suits must be defended, causing the defendant to incur costly fees and expenses. Some states have chosen to address the problem by allowing a victorious defendant to seek payment of those fees and costs by the plaintiff. (Most states have long allowed for recovery of costs, but that typically did not involve legal fees).
Following the Aurora, Colorado "Batman Shooting", seven survivors sued the cinema, arguing that poor theater security made the theater-owner at fault for the shooting under Colorado tort law. The judge urged settlement but when the parties did not settle, he ruled in favor of the theater after a full trial. Thereafter, the theater sought recovery of legal fees in accordance with Colorado's "fee shifting" statute, part of a wave of tort reform in the 1980s.
The judge found that the request met Colorado's requirements for shifting fees to the losing party, and ruled that the theater's $700,000 attorney fee must be paid by the plaintiffs. There were originally seven plaintiffs, but only four remained through trial, so only they will be liable for the judgment.
Personally, while I'm in favor of tort reform and some kind of fee shifting, I don't like this approach. I think the goal should be discouraging frivolous lawsuits by allowing defendants to recover fees from those plaintiffs. But if a defendant cannot defeat a plaintiff's claim with a preliminary motion to dismiss or even a motion for summary judgment after discovery, I don't see how that case can be called frivolous. If a case requires trial to resolve, how could it have been frivolous? Just because a plaintiff loses doesn't mean that the case was the kind that we should be trying to discourage in our tort system.
Plus, fees incurred in defending a full trial are always going to be substantial. If you don't have a standard for recovery that requires the defendant win on a motion, the fees should at least be capped. It just strikes me as strongly discouraging, even for legitimate plaintiffs, to have consider the risk that losing the case will bankrupt you - and that should never be an objective of any tort system or tort reform. And I say that as someone who has spent most of my professional life involved in tort defense in one way or another.
Aurora shooting victims have to pay Cinemark theater chain - Business Insider
One of the basic concepts in tort reform is that there are too many tort lawsuits with little to no legal foundation. But there is no guardian at the door at the court clerk's office and these suits must be defended, causing the defendant to incur costly fees and expenses. Some states have chosen to address the problem by allowing a victorious defendant to seek payment of those fees and costs by the plaintiff. (Most states have long allowed for recovery of costs, but that typically did not involve legal fees).
Following the Aurora, Colorado "Batman Shooting", seven survivors sued the cinema, arguing that poor theater security made the theater-owner at fault for the shooting under Colorado tort law. The judge urged settlement but when the parties did not settle, he ruled in favor of the theater after a full trial. Thereafter, the theater sought recovery of legal fees in accordance with Colorado's "fee shifting" statute, part of a wave of tort reform in the 1980s.
The judge found that the request met Colorado's requirements for shifting fees to the losing party, and ruled that the theater's $700,000 attorney fee must be paid by the plaintiffs. There were originally seven plaintiffs, but only four remained through trial, so only they will be liable for the judgment.
Personally, while I'm in favor of tort reform and some kind of fee shifting, I don't like this approach. I think the goal should be discouraging frivolous lawsuits by allowing defendants to recover fees from those plaintiffs. But if a defendant cannot defeat a plaintiff's claim with a preliminary motion to dismiss or even a motion for summary judgment after discovery, I don't see how that case can be called frivolous. If a case requires trial to resolve, how could it have been frivolous? Just because a plaintiff loses doesn't mean that the case was the kind that we should be trying to discourage in our tort system.
Plus, fees incurred in defending a full trial are always going to be substantial. If you don't have a standard for recovery that requires the defendant win on a motion, the fees should at least be capped. It just strikes me as strongly discouraging, even for legitimate plaintiffs, to have consider the risk that losing the case will bankrupt you - and that should never be an objective of any tort system or tort reform. And I say that as someone who has spent most of my professional life involved in tort defense in one way or another.
A survivor of the Aurora movie theater massacre said he believes "everything was for naught" after a failed lawsuit against theater owner Cinemark left four survivors on the hook for more than $700,000 owed to the company.
The survivors had filed a federal lawsuit alleging that the theater's security flaws had helped enable the attack that left 12 dead and more than 70 injured in 2012.
The judge first urged the plaintiffs to settle, but ruled after the deal collapsed that Cinemark was not liable for the shooting, according to The Los Angeles Times.
Colorado law allows the winning side of civil cases to seek costs, so plaintiffs were then ordered to pay more than $700,000 to Cinemark to reimburse the theater chain's legal fees.
Aurora shooting victims have to pay Cinemark theater chain - Business Insider