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Link: http://tinyurl.com/3pwjb Web Site for Complaints Sparks Lawsuit Fri Nov 5, 2:53 PM ET By CHARLES ODUM, Associated Press Writer DALLAS, Ga. - When Alan and Linda Townsend were unhappy with the sprayed-on siding applied to their house, the frustrated couple launched a Web site to complain and to give other unsatisfied customers a forum. Visitor postings to the Web site said the product, Spray on Siding, cracked, bubbled and buckled. For their efforts, the Townsends got slapped with a lawsuit by the product's maker. The federal case may help shape the boundaries of online speech.
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sinister wrote:
Visitor postings to the Web site said the product, Spray on Siding, cracked, bubbled and buckled. For their efforts, the Townsends got slapped with a lawsuit by the product's maker.
If they can prove their allegations about the product are true, then they have nothing to worry about. In American courts, truth is defense against libel or slander. It is different in Canada. But this is the U.S.A. Bob Kolker
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On Sat, 06 Nov 2004 11:38:41 -0500, "robert j. kolker" <nowhere@nowhere.net> wrote:
sinister wrote: If they can prove their allegations about the product are true, then they have nothing to worry about. In American courts, truth is defense against libel or slander.
But it doesn't get you reimbursed for exorbitant legal fees. Sleazy businessmen (or other sleazy public figures) generally have deeper pockets than ordinary citizens who challenge them. For the sleazy, a bogus libel lawsuit is simply another cost of doing business. "Justice is open to everyone, in the same way as the Ritz Hotel." --Judge Sturgess (1928) To discourage frivolous libel lawsuits (an indirect attack on the First Amendment), a libel defendant should be able to file a cross-claim for reimbursement of legal fees, if the jury decides his article was probably true. (But, if the jury decides the article was false, the cross-claim should constitute evidence of "malice" and/or "recklessness.") --Hugo S. Cunningham
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Hugo S. Cunningham wrote:
But it doesn't get you reimbursed for exorbitant legal fees.
Ah, but it does. One can couter-sue for the other party bringing a false law suit. Sleazy
businessmen (or other sleazy public figures) generally have deeper pockets than ordinary citizens who challenge them. For the sleazy, a bogus libel lawsuit is simply another cost of doing business. "Justice is open to everyone, in the same way as the Ritz Hotel." --Judge Sturgess (1928) To discourage frivolous libel lawsuits (an indirect attack on the First Amendment), a libel defendant should be able to file a cross-claim for reimbursement of legal fees,
Precisely. Countersuits are possible. Boib Kolker
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On Sat, 06 Nov 2004 16:20:31 GMT, "sinister" <sinister@nospam.invalid> wrote:
Link: http://tinyurl.com/3pwjb Web Site for Complaints Sparks Lawsuit
The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit. -- "A society that robs an individual of the product of his effort... is... a mob held together by institutionalized gang rule." -- Ayn Rand
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On Sat, 06 Nov 2004 13:55:47 -0500, "robert j. kolker" <nowhere@nowhere.net> wrote:
Hugo S. Cunningham wrote: Ah, but it does. One can couter-sue for the other party bringing a false law suit. Sleazy Precisely. Countersuits are possible.
My understanding, however, is that under current law countersuits are resolved separately, after the delay and expense of a new trial. Is that true? If the cross-claim were to be settled at the same original trial, by the same jury, that would be a much more realistic and immediate deterrant. --Hugo S. Cunningham
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This is a multi-part message in MIME format. --------------010108080106030308080401 Content-Type: text/plain; charset=us-ascii; format=flowed Content-Transfer-Encoding: 7bit Socialism is a Mental Disease wrote:
On Sat, 06 Nov 2004 16:20:31 GMT, "sinister" <sinister@nospam.invalid> wrote: The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit.
Actually California already has a rule that is even fairer than "loser pays everything" : 1. Each side is required to make an offer to settle before trial : If plaintiff's amount if equal to or lower than defendant's offer the suite is settled without trial. 2. If the jury awards more than the amount asked by plaintiff, loser (defendent) pays both side's legal fees. 3. If the jury awards less than the amount offered by defendent, winner (plaintiff) must pay the loser's legal fees! The rationale is that plaintiff should have accepted the offer of the defendent and avoided all the legal fees of both sides. Note : this rule only applies if both sides take care to put their offer/counteroffer on record before trial, according to certain arcane procedures, which doesn't always happen. --------------010108080106030308080401 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit <!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"> <html> <head> <meta content="text/html;charset=ISO-8859-1" http-equiv="Content-Type"> <title></title> </head> <body bgcolor="#ffffff" text="#000000"> <br> <br> Socialism is a Mental Disease wrote: <blockquote cite="midot8qo0peece0s8c8j9t4tj1i3ge8p8l0ig@4ax.com" type="cite"> <pre wrap="">On Sat, 06 Nov 2004 16:20:31 GMT, "sinister" <a class="moz-txt-link-rfc2396E" href="mailto:sinister@nospam.invalid"><sinister@nospam.invalid></a> wrote: </pre> <blockquote type="cite"> <pre wrap="">Link: <a class="moz-txt-link-freetext" href="http://tinyurl.com/3pwjb">http://tinyurl.com/3pwjb</a> Web Site for Complaints Sparks Lawsuit </pre> </blockquote> <pre wrap=""><!----> The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit. </pre> </blockquote> Actually California already has a rule that is even fairer than "loser pays everything" :<br> <br> 1. Each side is required to make an offer to settle before trial : If plaintiff's amount if equal to or lower than defendant's offer the suite is settled without trial.<br> 2. If the jury awards more than the amount asked by plaintiff, loser (defendent) pays both side's legal fees.<br> 3. If the jury awards less than the amount offered by defendent, winner (plaintiff) must pay the loser's legal fees! The rationale is that plaintiff should have accepted the offer of the defendent and avoided all the legal fees of both sides.<br> <br> Note : this rule only applies if both sides take care to put their offer/counteroffer on record before trial, according to certain arcane procedures, which doesn't always happen.<br> </body> </html> --------------010108080106030308080401--
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On Sat, 06 Nov 2004 16:20:31 GMT, "sinister" <sinister@nospam.invalid> wrote: The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit.
Idiotic. That way no one with shallow pockets could ever sue anyone with deep pockets. 'Course, that's probably the reason someone like you who favors aristocracy would have it.
-- "A society that robs an individual of the product of his effort... is... a mob held together by institutionalized gang rule." -- Ayn Rand
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On Sat, 06 Nov 2004 20:08:07 GMT, "sinister" <sinister@nospam.invalid> wrote:
Idiotic. That way no one with shallow pockets could ever sue anyone with deep pockets. 'Course, that's probably the reason someone like you who favors aristocracy would have it.
Thanks for confirming you are a retard, sinister. -- "A society that robs an individual of the product of his effort... is... a mob held together by institutionalized gang rule." -- Ayn Rand
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Socialism is a Mental Disease wrote:
The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit.
That is the solution. This will put a stop to people trying to scoop in deep pockets at no cost to themselves. If one wants to play deep pockets they have to pay. Preferably, up front. Bob Kolker
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On Sat, 06 Nov 2004 18:42:57 GMT, checkwebsite@cyberussr.com (Hugo S. Cunningham) wrote:
On Sat, 06 Nov 2004 11:38:41 -0500, "robert j. kolker" <nowhere@nowhere.net> wrote: But it doesn't get you reimbursed for exorbitant legal fees. Sleazy businessmen (or other sleazy public figures) generally have deeper pockets than ordinary citizens who challenge them. For the sleazy, a bogus libel lawsuit is simply another cost of doing business. "Justice is open to everyone, in the same way as the Ritz Hotel." --Judge Sturgess (1928) To discourage frivolous libel lawsuits (an indirect attack on the First Amendment), a libel defendant should be able to file a cross-claim for reimbursement of legal fees, if the jury decides his article was probably true. (But, if the jury decides the article was false, the cross-claim should constitute evidence of "malice" and/or "recklessness.") --Hugo S. Cunningham
California already has such a law: the anti-SLAPP ("strategic lawsuit against public participation") statute (Code of Civil Procedure 425.16 and 425.17). Details at http://www.casp.net/ Landlords or merchants attempting to sue for libel have regularly been defeated by anti-SLAPP motions, this is clearly within the law's legislative intent, and it has been repeatedly upheld. The procedure is that a defendant may file a "special motion to strike", which must be granted unless the plaintiff can show (without resorting to discovery, which is suspended when the special motion is filed) a probability of prevailing on the merits. Attorney's fees and costs are automatically awarded to the moving party, including costs of responding to an appeal of the granted motion. Evidently there are California attorneys who will take anti-SLAPP cases on contingency; see Ketchum v. Moses (2001), which set rules for awarding contingency fees on a successful special motion to strike and subsequent appeals. -- Not a lawyer, Chris Green
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Socialism is a Mental Disease wrote:
On Sat, 06 Nov 2004 16:20:31 GMT, "sinister" <sinister@nospam.invalid> wrote: The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit.
That is a good idea and what is done in Canada and other countries. They should also allow no settling out of court. Many people launch lawsuits hoping for a quick out of court settlements. The doctors in Canada have the Canadian Medical Protective Association. If you sue a doctor in Canada they fight to the very end -- they will not settle out of court. And good luck finding another doctor to serve as a witness for you -- unless the case is egregious -- because all doctors pay dues to and are member of the CMPA. This cannot be done in the United States since there are hundreds insurance companies selling malpractice insurance. In Canada there is one, the CMPA.
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On Sat, 06 Nov 2004 23:46:11 GMT, Christopher Green <cj.green@att.net> wrote:
On Sat, 06 Nov 2004 18:42:57 GMT, checkwebsite@cyberussr.com (Hugo S. Cunningham) wrote:
[...] To discourage frivolous libel lawsuits (an indirect attack on the First Amendment), a libel defendant should be able to file a cross-claim for reimbursement of legal fees, if the jury decides his article was probably true. (But, if the jury decides the article was false, the cross-claim should constitute evidence of "malice" and/or "recklessness.")
California already has such a law: the anti-SLAPP ("strategic lawsuit against public participation") statute (Code of Civil Procedure 425.16 and 425.17). Details at http://www.casp.net/ Landlords or merchants attempting to sue for libel have regularly been defeated by anti-SLAPP motions, this is clearly within the law's legislative intent, and it has been repeatedly upheld. The procedure is that a defendant may file a "special motion to strike", which must be granted unless the plaintiff can show (without resorting to discovery, which is suspended when the special motion is filed) a probability of prevailing on the merits. Attorney's fees and costs are automatically awarded to the moving party, including costs of responding to an appeal of the granted motion. Evidently there are California attorneys who will take anti-SLAPP cases on contingency; see Ketchum v. Moses (2001), which set rules for awarding contingency fees on a successful special motion to strike and subsequent appeals.
I like that approach, with one major exception: it should apply to *all* libel lawsuits, not just those made by landlords or merchants. --Hugo S. Cunningham
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My understanding, however, is that under current law countersuits are resolved separately, after the delay and expense of a new trial. Is that true? If the cross-claim were to be settled at the same original trial, by the same jury, that would be a much more realistic and immediate deterrant.
Don't the Brits have a loser-pays system, wherein the loser is automatically responsible for the winner's court costs?
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On Sun, 07 Nov 2004 16:45:21 GMT, "Karl Hungus" <karlhungus@comcast.net> wrote:
Don't the Brits have a loser-pays system, wherein the loser is automatically responsible for the winner's court costs?
Yes. I am not sure I would go that far; sometimes the loser might honestly believe he had a decent case, and was simply outgunned by the winner's higher-priced lawyers (who *he* now is billed for). I am inclined to treat libel lawsuits as a special case, closely related as they are to free speech issues. --Hugo S. Cunningham
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On Sat, 06 Nov 2004 11:38:41 -0500, "robert j. kolker" <nowhere@nowhere.net> wrote:
sinister wrote: If they can prove their allegations about the product are true, then they have nothing to worry about.
Except bankruptcy as a result of injunctions, legal costs, attachments of their assets, etc.
In American courts, truth is defense against libel or slander.
But not against lawsuits, injunctions, etc. sufficient to bankrupt anyone who dares defy the corporate elite, even if they _can_ ultimately win in court.
It is different in Canada. But this is the U.S.A.
It is well known that US courts are the least likely in the free world to dispense justice in either civil or criminal cases. -- Roy L
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"Hugo S. Cunningham" <checkwebsite@cyberussr.com> wrote
Yes. I am not sure I would go that far; sometimes the loser might honestly believe he had a decent case, and was simply outgunned by the winner's higher-priced lawyers (who *he* now is billed for).
and remembering that Britain's court system was exactly that- the King's Court. Applicant's to the King's Court were generally amongst the landed gentry, and 'loser pays' was well within their capacity. That's one of the things our court system was supposed to supplant- to open the courts to all. And still, the vast majority of crap clogging the courts is contract law between corporations, not some poor schmuck with a haemostat stuck in his ear and a drunk doctor to blame.
I am inclined to treat libel lawsuits as a special case, closely related as they are to free speech issues.
I'm tempted to make free speech a responsible act again. Chas
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On Sun, 7 Nov 2004 14:58:44 -0700, "Chas" <chasclementsSPOOF@comcast.net> wrote:
"Hugo S. Cunningham" <checkwebsite@cyberussr.com> wrote
[...] I am inclined to treat libel lawsuits as a special case, closely related as they are to free speech issues.
I'm tempted to make free speech a responsible act again.
Meaning what? That it should only be available to those who can afford the legal costs of defending a libel lawsuit? --Hugo S. Cunningham
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On Sat, 06 Nov 2004 20:08:07 GMT, "sinister" <sinister@nospam.invalid> wrote: Thanks for confirming you are a retard, sinister.
Name a single thing I typed that's retarded, you blithering moron.
-- "A society that robs an individual of the product of his effort... is... a mob held together by institutionalized gang rule." -- Ayn Rand
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Socialism is a Mental Disease wrote: That is the solution. This will put a stop to people trying to scoop in deep pockets at no cost to themselves. If one wants to play deep pockets they have to pay. Preferably, up front.
And it does nothing to prevent people with deep pockets from clubbing those with shallow pockets. Google on SLAPP.
Bob Kolker
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Socialism is a Mental Disease wrote: That is a good idea and what is done in Canada and other countries. They should also allow no settling out of court. Many people launch lawsuits hoping for a quick out of court settlements. The doctors in Canada have the Canadian Medical Protective Association. If you sue a doctor in Canada they fight to the very end -- they will not settle out of court. And good luck finding another doctor to serve as a witness for you -- unless the case is egregious -- because all doctors pay dues to and are member of the CMPA. This cannot be done in the United States since there are hundreds insurance companies selling malpractice insurance. In Canada there is one, the CMPA.
And this is *good*? The system you describe sounds like a good recipe for doctors to get away with criminal negligence.
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On Mon, 08 Nov 2004 01:49:05 GMT, "sinister" <sinister@nospam.invalid> wrote:
Name a single thing I typed that's retarded, you blithering moron.
'Cause you wrongly and repeatedly asserts I favor aristocracy which is a LIE! Got it now, sweetie? -- "A society that robs an individual of the product of his effort... is... a mob held together by institutionalized gang rule." -- Ayn Rand
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Christopher Green <cj.green@att.net> wrote in message news:<0gnqo05db5ir0don5f9uhthvhm8f78fs7c@4ax.com>...
On Sat, 06 Nov 2004 18:42:57 GMT, checkwebsite@cyberussr.com (Hugo S. Cunningham) wrote: California already has such a law: the anti-SLAPP ("strategic lawsuit against public participation") statute (Code of Civil Procedure 425.16 and 425.17). Details at http://www.casp.net/ Landlords or merchants attempting to sue for libel have regularly been defeated by anti-SLAPP motions, this is clearly within the law's legislative intent, and it has been repeatedly upheld. The procedure is that a defendant may file a "special motion to strike", which must be granted unless the plaintiff can show (without resorting to discovery, which is suspended when the special motion is filed) a probability of prevailing on the merits. Attorney's fees and costs are automatically awarded to the moving party, including costs of responding to an appeal of the granted motion. Evidently there are California attorneys who will take anti-SLAPP cases on contingency; see Ketchum v. Moses (2001), which set rules for awarding contingency fees on a successful special motion to strike and subsequent appeals.
Or you could just do it like we do here (Australia) and have a "loser pays" system.
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On Sun, 07 Nov 2004 14:19:51 GMT, checkwebsite@cyberussr.com (Hugo S. Cunningham) wrote:
On Sat, 06 Nov 2004 23:46:11 GMT, Christopher Green <cj.green@att.net> wrote: [...] To discourage frivolous libel lawsuits (an indirect attack on the First Amendment), a libel defendant should be able to file a cross-claim for reimbursement of legal fees, if the jury decides his article was probably true. (But, if the jury decides the article was false, the cross-claim should constitute evidence of "malice" and/or "recklessness.") I like that approach, with one major exception: it should apply to *all* libel lawsuits, not just those made by landlords or merchants.
It does apply to most libel suits, just that many of the interesting examples involve a merchant, landlord, tradesman, or professional alleging trade libel. Any case in which speech protected under the First Amendment as comment on a matter of public concern is eligible for an anti-SLAPP special motion to strike. -- Chris Green
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On 7 Nov 2004 18:56:45 -0800, nini_pad@yahoo.com (michael price) wrote:
Christopher Green <cj.green@att.net> wrote in message news:<0gnqo05db5ir0don5f9uhthvhm8f78fs7c@4ax.com>... Or you could just do it like we do here (Australia) and have a "loser pays" system.
"Loser pays" doesn't cut it, it's simply a different sort of invitation for abusive lawsuits. Because it is entirely possible for a well-financed legal team to overcome truth and win an unjust verdict, it is possible to use a "loser pays" system not only to silence a critic but to extract your cost of doing so from him. All you need is enough capital to overwhelm him. It can take months or years and tens or hundreds of thousands of dollars on _both_ sides to get a libel suit to trial. The private citizen up against a well-financed business is in an unequal combat that could well ruin him before he gets a chance at winning his case and recouping his fees, and he is taking a risk that he will not only lose but be charged the expense of cheating him. The point of anti-SLAPP is to cut lawsuits intended to silence public criticism without putting the private citizen who speaks out at risk of a ruinous defeat or a Pyrrhic victory. -- Chris Green
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"Loser pays" doesn't cut it, it's simply a different sort of invitation for abusive lawsuits. Because it is entirely possible for a well-financed legal team to overcome truth and win an unjust verdict, it is possible to use a "loser pays" system not only to silence a critic but to extract your cost of doing so from him. All you need is enough capital to overwhelm him.
The ultimate weapon for someone who wants to shut up someone else in this situation would seem to be a law firm that charges infinity squared per hour, on contingency. It would work well against someone with some assets (not judgement-proof) but far less than the law firm. Gordon L. Burditt
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sinister wrote:
And this is *good*? The system you describe sounds like a good recipe for doctors to get away with criminal negligence.
Doctors will testify if a case is egregious or if it looks like there was "criminal negligence". It is better than the American system where all complications (even those not caused by doctors) result in litigation.
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On Mon, 08 Nov 2004 02:40:53 GMT, Socialism is a Mental Disease <root@localhost.> wrote:
On Mon, 08 Nov 2004 01:49:05 GMT, "sinister" <sinister@nospam.invalid> wrote: 'Cause you wrongly and repeatedly asserts I favor aristocracy which is a LIE!
No, it isn't. It is a fact confirmed by pretty much everything you post. You are obviously a feudalist (what Dan Sullivan called "royal libertarian"). You have stated that all aristocratic privileges that take the form of property rights are by definition rightful, and should be enforced in perpetuity. It would be hard to construct a more definitively aristocratic view. -- Roy L
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On 7 Nov 2004 18:56:45 -0800, nini_pad@yahoo.com (michael price) wrote:
Or you could just do it like we do here (Australia) and have a "loser pays" system.
Of course, you do not regard it as problematic that such a system effectively denies the protection of law to any but the rich. -- Roy L
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royls@telus.net wrote:
On 7 Nov 2004 18:56:45 -0800, nini_pad@yahoo.com (michael price) wrote: Of course, you do not regard it as problematic that such a system effectively denies the protection of law to any but the rich.
It doesn't help the rich lawyers and their firms. Anyways, all it does is provide a disincentive to suing and hoping for a quick out-of-court settlement.
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royls@telus.net wrote: It doesn't help the rich lawyers and their firms. Anyways, all it does is provide a disincentive to suing and hoping for a quick out-of-court settlement.
No, a simple "loser pays" regime definitely prevents those with small pockets from suing those with large pockets, while doing nothing to prevent the opposite. Don't think the opposite occurs? Google on SLAPP.
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sinister wrote: Doctors will testify if a case is egregious or if it looks like there was "criminal negligence". It is better than the American system where all complications (even those not caused by doctors) result in litigation.
You're amazingly naive. Clearly, doctors have a strong disincentive to testify in all but the extreme, egregious cases. That means there will be lots of cases in which the doctor was clearly at fault, yet no other doctor will testify against him/her. It's like asking cops to police other cops. (Not trying to pick on cops here; this type of behavior can be found in many if not all professional groups.)
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On Mon, 08 Nov 2004 03:40:23 GMT, Christopher Green <cj.green@att.net> wrote:
On Sun, 07 Nov 2004 14:19:51 GMT, checkwebsite@cyberussr.com (Hugo S. Cunningham) wrote: It does apply to most libel suits, just that many of the interesting examples involve a merchant, landlord, tradesman, or professional alleging trade libel. Any case in which speech protected under the First Amendment as comment on a matter of public concern is eligible for an anti-SLAPP special motion to strike.
That sounds good. In contrast, Massachusetts was considering an "anti-SLAPP" bill that *only* protected anti-development activists and some other fashionable causes. I am not sure whether it passed; in any case I opposed it as narrowly-based favoritism. --Hugo S. Cunningham
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On Sun, 07 Nov 2004 05:12:20 GMT, MS <mikesc@iname.com> wrote:
Socialism is a Mental Disease wrote:
[...] The easiest tort reform to do would be to specify that "loser pays everything". This way, people would think long and hard before initiating a lawsuit.
That is a good idea and what is done in Canada and other countries. They should also allow no settling out of court.
But what if both sides want a settlement? I knew a lawyer who spent many years representing insurance companies in airline crashes. These were reputable companies who didn't want to leave widows and orphans penniless; instead they wanted (and nearly always were able) to negotiate a fair deal, without wasting the time of jurors, judges, and other court personnel.
Many people launch lawsuits hoping for a quick out of court settlements. The doctors in Canada have the Canadian Medical Protective Association. If you sue a doctor in Canada they fight to the very end -- they will not settle out of court. And good luck finding another doctor to serve as a witness for you -- unless the case is egregious -- because all doctors pay dues to and are member of the CMPA. This cannot be done in the United States since there are hundreds insurance companies selling malpractice insurance. In Canada there is one, the CMPA.
The reason the public tolerate that in Canada is because they have universal health insurance. Even without a lawsuit, a patient who suffers an adverse result will be provided for. In contrast, the USA uses medical-malpractice lawsuits as a (wasteful, arbitrary, and unfair) form of backdoor health insurance. Even if the jury knows the doctor did nothing wrong, they will find for the plaintiff anyways, since that is the only way to prevent a family from being bankrupted by huge medical costs, and jurors know that doctors carry insurance. Fiscal conservatives tell Americans we can't afford universal health insurance. Looking at how much more expensive our medical system is (including all the legal and insurance costs), a more accurate claim is that we cannot afford *not* to have universal health insurance. --Hugo S. Cunningham
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On Mon, 08 Nov 2004 20:36:11 GM | | |