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The legal process will grind you in any serious dispute against a determined adversary.

Get a supremely optimal outcome and get the case dismissed right out the gate because it is legally defective even assuming all the facts alleged are true? Sticker price: $10K and up (more likely $25K to $50K to make it definitive after several opportunities to amend are given to the adversary).

Go through discovery to find out what witnesses will say on deposition, dig through all key documents, and then move for and get a summary judgment before trial by which a case is tossed on grounds that the law allows only one result based on material facts that are undisputed bearing on the legal point? Sticker price: $100K and up, with a year or more of grief thrown in as a bonus.

Go through trial and get vindicated by a judge or jury based on a complete presentation of evidence? Sticker price: $250K and up, after a year or two (or more) of wrangling.

And don't forget the appeals.

Most cases never get to trial and cost is a major factor prompting litigants to settle even though they are not particularly happy with an outcome. Charles Dickens, though he exaggerated for dramatic effect, got the spirit of this right in Bleak House (http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce), and little has changed since.

This, by the way, doesn't mean that you can't defend against cease-and-desist demands. Costs cut both ways. But it is sad how many times parties who are right nonetheless must fold because the costs of engaging (monetary and otherwise) are just not worth it.

this really makes me sick. in so many ways i see the system as a giant legacy piece of crap with tons of bugs that certain assholes have latched onto as "features"...

This would be the ultimate way to kill UGC sites. Sue them into bankruptcy. Just keep losing, but exhausting their cash. This is why the US needs a loser-pay model like the UK.

It's not quite that simple - the loser-pay model would mean that no one could sue major companies because they couldn't afford to pay their super-premium lawyers when they lose.

It's cliché, but totally on point:

Only sue if you have nothing to lose, or your opponents are ridiculously rich. (preferably: both).

In Australia, there's a deterrent in civil suits that a losing plaintiff pays costs for a successful defendant. Does the US have that at all?

I'm not in any way experienced in law, but it seems like that would help reduce the number of fishing expeditions and barratry.

This is spread all over Europe as well since it comes from Roman Law.

In this case, Australia is a common law country. Its legal heritage is English, not civil/Roman.

Same here in Brazil

While it would reduce "fishing expeditions", it would make me feel less secure in the legal system, because I might be afraid of the financial risk to sue someone.

It's not guaranteed, but it's common for the judge to order costs to be paid by the losing party. I'm really not familiar wtih the details of the system, sorry.

If you have nothing to lose, you probably can't afford lawyers in the first place.

Not quite your point, I know, but it seems to apply here.

If you're going after a target with deep pockets you will have no problems with lawyers who will work for a share of the settlement.

Edit: changed my wording to be more accurate.

I think you mean they'll work for a piece of the reward, not for free.

Yup, that's what I meant.

Unfortunately, an opportunity to better the system was lost by settling out of court.

Jay Meisel : you suck. For doing this.

(...too bad HN pages rank low on Google).

Other countries mitigate this problem by making costs awards against losing plaintiffs automatic.

But that tends to discourage people without substantial wealth from pursuing cases.

The law is not perfect and never will be.

>But that tends to discourage people without substantial wealth from pursuing cases.

Really? It seems that if you don't have much money, you don't have anything to lose. You know, like the average American buying a house during the bubble; if values go up, they make money. If values go down? bankruptcy.

My cynical take on the law: the purpose of the law is to settle disputes nonviolently, not necessarily justly.

The only consolation is things would be even more expensive if it was a "Gangs of New York"-style world today.

True; a similar one is to settle disputes predictably, so that lawyers can settle a dispute without actually going to court - again, not necessarily justly.

There's an interesting "law and economics" justification, which is that the party who in the best position to have prevented the problem should be responsible for the damages caused. The damages become an incentive.

It'd be great if trial by combat was an option for this sort of thing. I'd like nothing more than to hack the arms off of people who raise these lawsuits.

See the following paper for an economic analysis of trial by battle: http://www.law.yale.edu/documents/pdf/Intellectual_Life/LEO....

I particularly liked this quote: "[I]t's reasonable to expect to find a large number of retained legal representatives under a legal system in which people feel that their property rights are constantly threatened by rent-seeking litigiousness or in which rampant rent-seeking opportunity gives them an incentive to behave litigiously themselves. The rarity of retained champions in medieval England therefore suggests that rent seeking under trial by battle wasn't rampant."

You may find this amusing:

In December 2002, a 60-year-old mechanic named Leon Humphreys was fined £25 for failing to notify the Driver and Vehicle Licensing Agency that he had removed his Suzuki motorcycle from road usage. He refused to pay and claimed that he had the right, under medieval law, to choose a trial by combat with a "champion" nominated by the DVLA. This claim was denied by a court of magistrates in Bury St Edmunds, and he was further fined.



The United States inherited its common law traditions from the English system after it declared its independence in 1776, with precedents before that date entrenched in the American jurisprudence, as the Rule in Shelley's Case in property law has. The British, however, did not abolish wager by battle until 1819 after Ashford v Thornton, as noted above, and since independence no court in the United States has addressed the issue of whether this remains a valid alternative to a civil action under the law.


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