Actually, here’s a rule that would make a HELL of a lot of sense:
Either party to a lawsuit can contribute to a common monetary pool which is then split between both sides to hire lawyers. It is illegal for either side to pay a lawyer a bonus beyond this, or for the lawyer to accept additional help on the lawsuit.
And you don’t see any issues with this? That would seem to be far worse than the English rule/losers-pay.
I pick a random rich target, find 50 street bums, and have them file suits; the bums can’t contribute more than a few flea infested dollars, so my target pays for each of the 50 suits brought against him. If he contributes only a little, then both sides’ lawyers will be the crappiest & cheapest ones around, and the suit will be a diceroll; so my hobos will win some cases, reaping millions, and giving most of it to me per our agreement. If he contributes a lot, then we’ll both be able to afford high-powered lawyers, and the suit will be… a diceroll again. But let’s say better lawyers win the case for my target in all 50 cases; now he’s impoverished by the thousands of billable hours (although I do get nothing).
I go to my next rich target and say, sure would be a shame if those 50 hobos you ran over the other day were to all sue you...
But let’s say better lawyers win the case for my target in all 50 cases; now he’s impoverished by the thousands of billable hours (although I do get nothing).
How is this different from how things currently are, beyond a factor of two in cost for the target?
It’s not an issue of weakening the defense/target, but a massive strengthening of the offense.
Aside from the doubling of the target’s defense expenses (what, like that’s irrelevant or chump change?), I can launch 50 or 100 suits against my target for nothing. At that point, a judge having a bad day is enough for me to become a millionaire. Any system which is so trivially exploitable is a seriously bad idea, and I’m a little surprised Eliezer thinks it’s an improvement at all.
(I could try to do this with contingency-fees, but no sane firm would take my 100 frivolous suits on contingency payment and so I couldn’t actually do this.)
Surely that only works if the probability of winning a case depends only on the skill of the lawyers, and not on the actual facts of the cases. I imagine a lawyer with no training at all could unravel your plan and make it clear that your hobos had nothing to back up their case.
Also, being English myself, it hadn’t dawned on me that the losers-pay rule doesn’t apply everywhere. Having no such system at all seems really stupid.
It also occurs to me that hiring expensive lawyers under losers-pay is like trying to fix a futarchy: you don’t lose anything if you succeeded, but you stand to lose a lot if you fail.
Surely that only works if the probability of winning a case depends only on the skill of the lawyers, and not on the actual facts of the cases. I imagine a lawyer with no training at all could unravel your plan and make it clear that your hobos had nothing to back up their case.
If facts totally determine the case, then my exploit doesn’t work but Eliezer’s radical change is equally irrelevant. If facts have no bearing on who wins or loses, and it is purely down to the lawyers, then Eliezer’s system turns lawsuits into a coin flip, which is only an improvement if you think that the current system gets things right less than 50% of the time, and you’d also have to show there would be no negating side-effects like people using my exploit. If facts determine somewhere in-between, then there is a substantial area where my exploit will still work.
Suppose I have to put up a minimum of 10k for each hobo lawsuit asking for 1 million; then I need only have a 1% chance of winning to break even. So if cases with lousy lawyers on both sides wind up with the wrong verdict even 2% of the time, I’m laughing all the way to the bank. And it’s very easy for bad lawyering work to lose an otherwise extremely solid judgement. A small slipup might result in the defendant not even showing up, in which case the defendant gets screwed over by the default judgement against him. Even the biggest multinational can mess up: consider this recent case where Pepsi is contesting a $1.26 billion default judgement which was assessed because a secretary forgot a letter. They probably won’t have to pay, but even if they settle for a tiny fraction of 1.26 billion, how many frivolous lawsuits do you think one fluke like that could fund?
For that matter, consider patent trolls; they have limited funds and currently operate quite successfully, despite the fact that they are generally suing multinationals who can spend far more than the troll on any given case. How much more effective would they be if those parasites could force their hosts to mount a far less lavish & effective defense than they would otherwise?
Also, being English myself, it hadn’t dawned on me that the losers-pay rule doesn’t apply everywhere. Having no such system at all seems really stupid.
I did some reading; apparently it’s long-standing tradition all the way back to colonial times. The author said the Americans likely wanted to discourage litigation, which I suppose is the polite way of saying that early Americans were smuggling indebted IP-infringing scofflaws who didn’t want civil justice to work too well.
It also occurs to me that hiring expensive lawyers under losers-pay is like trying to fix a futarchy: you don’t lose anything if you succeeded, but you stand to lose a lot if you fail.
If the defending party is only required to match the litigating party’s contribution, the suits will never proceed because the litigating bums can’t afford to pay for a single hour of a lawyer’s time. And while I don’t know if this is true, it makes sense that funding the bums yourself would be illegal.
Well, the original said you could only not fund the legal defense; I don’t see anything there stopping you from putting the bums up in a hotel or something during the lawsuits.
But even if defendants were required to spend the same as the plaintiff, we still run into the issue I already mentioned: So now I simply need to put up 5 or 10k for each bum, guaranteeing me a very crappy legal team but also guaranteeing my target a very crappy legal team.
The less competent the 2 lawyers are, the more the case becomes a role of the dice. (Imagine taking it down to the extreme where the lawyers are so stupid or incompetent they are replaceable by random number generators.) The most unpredictable chess game in the world is between the 2 rankest amateurs, not the current World Champion and #2.
But maybe your frivolous win-rate remains the same regardless of whether you put in 10k or a few million. There’s still a problem: people already use frivolous lawsuits as weapons: forcing discovery, intrusive subpoenas, the sheer hassle, and so on. Those people, and many more, would regard this as a massive enhancement of lawsuits as a weapon.
You have an enemy? File a lawsuit, put in 20k, say, and now you can tell your crappy lawyer to spend an hour on it every so often just to keep it kicking. If your target blows his allotted 20k trying to get the lawsuit ended despite your delaying & harassing tactics, now you can sic your lawyer on the undefended target; if he measures out his budget to avoid this, then he has given into suffering this death of a thousand cuts. And if he goes without? As they say, someone who represents himself in court has a fool for a client....
Well, a lot of what you’re pointing out here is the result of other systemic problems that need other systemic fixes. Judges may not be fast enough to toss out foolish complaints. One might need a two-tier system whereby cheap lawyers and reasonably sane judges could quickly toss almost all the lawsuits, and any that make it past the first bar can get more expensive lawyers. One may need a basic cost of a dismissed suit to the litigant, or some higher degree of loser-pays.
Lawsuits are already weapons. This isn’t obviously a massive enhancement. At most, it increases costs by a factor of 2 for rich defendants, while greatly improving (if it works as planned!) the position of poor defendants.
Lawsuits are already weapons. This isn’t obviously a massive enhancement. At most, it increases costs by a factor of 2 for rich defendants, while greatly improving (if it works as planned!) the position of poor defendants.
OK. So the English rule is a weakened version of this; we should expect to see great improvements from it, since between it and contingency-fees and class-actions, poor defendants have much greater financial wherewithal than their poverty would allow. Do we see great improvements? If we don’t, why would we expect your full-strength treatment to work?
And if we can’t justify it on any empirical grounds, why on earth would you put it forward on theoretical grounds when a minute’s thought shows multiple issues with it, to say nothing of how one would actually enforce equitable spending? (The issue would seem to be as difficult & tricky as enforcing campaign finance laws...) And if I, an utter layman to the law, can come up with flaws you seem to acknowledge as real, how many ways could a legal eagle come up with to abuse it?
Well, a lot of what you’re pointing out here is the result of other systemic problems that need other systemic fixes.
“She said that instead of a flashy and expensive public awareness campaign, the real solution was for binge drinkers to take responsibility for their own actions and learn that there were ways to have fun that didn’t involve alcohol.
This struck me as a misguided line of thinking. Consider this analogy: pretend that the city government was, instead, increasing the number of police to prevent terrorist attacks. And that the writer was arguing that no, we shouldn’t get the police involved: the real solution was for terrorists to stop being so violent and attacking people. This would be a weird and completely useless response.”
I would contribute nothing to the pool, hire a lawyer privately on the side to advise me, and pass his orders down to the public courtroom lawyer. If I have much more money than the other party, and if the money can strongly enough determine the lawyer’s quality and the trial’s outcome, then even advice and briefs prepared outside the courtroom by my private lawyer would be worth it.
It sometimes is possible to have laws or guild rules if the prohibited behavior is clear enough that people can’t easily fool themselves into thinking they’re not violating them. Accepting advice and briefs prepared outside the courtroom is illegal, in this world.
I agree with Alicorn. Even if you pass the law, there’s no practical way to stop people from getting private advice secretly, especially in advance of the court date. If you try real hard, private lawyers will go underground (and as the saying goes, only criminals will have lawyers :-) People will pass along illegal samizdat manuals of how to behave in court, half of them actually presenting harmful advice and none of them properly attributed. Congratulations: you have just forced lawyering to become a secret Dark Art.
Do you think this is an improvement? As described, it looks like it’s a repeat of a similar system with similar problems. (And how much of that is because we already know those failings and are best at describing them?)
Consider how much easier it becomes to get a good professional support for the poor side in Eliezer’s setup. There is just too much trouble with “underground” professional representation. A significant portion of expensive lawyers may simply not like the idea of going “underground”, because it hurts their self-image and lowers their status within the community of “white-book” lawyers.
You’re right, I was deliberately playing devil’s advocate. I should reconsider how likely the failure mode I described is, although I do believe its probability isn’t very small.
Any other advice? What if I want to go to my Ethical Culture Society leader to ask him or her about whether something my in-court lawyer suggests would be right? What if my spouse is a lawyer? What if I’m a lawyer—a really expensive one?
That’s what I think too. Even if you pass the law, there’s no practical way to stop people from getting private advice secretly, especially in advance of the court date. If you try real hard, private lawyers will go underground (and as the saying goes, only criminals will have lawyers :-) People will pass along illegal samizdat manuals of how to behave in court, half of them actually presenting harmful advice and none of them properly attributed. Congratulations: you have just forced lawyering to become a secret Dark Art.
Okay, suppose a lawyer is not allowed to accept briefs. In the Least Convenient case where you happen to be a really expensive lawyer, how much can actually be accomplished courtroom-wise if you talk for a few hours with a much less expensive lawyer? Would any lawyers care to weigh in?
Why would you need to do anything with the inexpensive lawyer? Contribute nothing to the fund—maybe even forfeit your half of whatever the other party contributes—and then represent yourself.
I suspect that the only real solution to the Lawyer Problem is to remove the necessity of the profession—ie, either simplify the law, or cognitively enhance the people to the point where any person who can not hold the whole of the law in his/her head can be declared legally incompetent.
If possible, that would certainly be a great solution.
The original (our-world) Lawyer Problem goes beyond what we’ve discussed here: it involves (ex-) lawyers both deliberately making the law and the case law more and more complex, to increase the value of their services.
Actually, here’s a rule that would make a HELL of a lot of sense:
Either party to a lawsuit can contribute to a common monetary pool which is then split between both sides to hire lawyers. It is illegal for either side to pay a lawyer a bonus beyond this, or for the lawyer to accept additional help on the lawsuit.
And you don’t see any issues with this? That would seem to be far worse than the English rule/losers-pay.
I pick a random rich target, find 50 street bums, and have them file suits; the bums can’t contribute more than a few flea infested dollars, so my target pays for each of the 50 suits brought against him. If he contributes only a little, then both sides’ lawyers will be the crappiest & cheapest ones around, and the suit will be a diceroll; so my hobos will win some cases, reaping millions, and giving most of it to me per our agreement. If he contributes a lot, then we’ll both be able to afford high-powered lawyers, and the suit will be… a diceroll again. But let’s say better lawyers win the case for my target in all 50 cases; now he’s impoverished by the thousands of billable hours (although I do get nothing).
I go to my next rich target and say, sure would be a shame if those 50 hobos you ran over the other day were to all sue you...
How is this different from how things currently are, beyond a factor of two in cost for the target?
It’s not an issue of weakening the defense/target, but a massive strengthening of the offense.
Aside from the doubling of the target’s defense expenses (what, like that’s irrelevant or chump change?), I can launch 50 or 100 suits against my target for nothing. At that point, a judge having a bad day is enough for me to become a millionaire. Any system which is so trivially exploitable is a seriously bad idea, and I’m a little surprised Eliezer thinks it’s an improvement at all.
(I could try to do this with contingency-fees, but no sane firm would take my 100 frivolous suits on contingency payment and so I couldn’t actually do this.)
Good point. My initial response to your comment was short sighted.
Surely that only works if the probability of winning a case depends only on the skill of the lawyers, and not on the actual facts of the cases. I imagine a lawyer with no training at all could unravel your plan and make it clear that your hobos had nothing to back up their case.
Also, being English myself, it hadn’t dawned on me that the losers-pay rule doesn’t apply everywhere. Having no such system at all seems really stupid.
It also occurs to me that hiring expensive lawyers under losers-pay is like trying to fix a futarchy: you don’t lose anything if you succeeded, but you stand to lose a lot if you fail.
If facts totally determine the case, then my exploit doesn’t work but Eliezer’s radical change is equally irrelevant. If facts have no bearing on who wins or loses, and it is purely down to the lawyers, then Eliezer’s system turns lawsuits into a coin flip, which is only an improvement if you think that the current system gets things right less than 50% of the time, and you’d also have to show there would be no negating side-effects like people using my exploit. If facts determine somewhere in-between, then there is a substantial area where my exploit will still work.
Suppose I have to put up a minimum of 10k for each hobo lawsuit asking for 1 million; then I need only have a 1% chance of winning to break even. So if cases with lousy lawyers on both sides wind up with the wrong verdict even 2% of the time, I’m laughing all the way to the bank. And it’s very easy for bad lawyering work to lose an otherwise extremely solid judgement. A small slipup might result in the defendant not even showing up, in which case the defendant gets screwed over by the default judgement against him. Even the biggest multinational can mess up: consider this recent case where Pepsi is contesting a $1.26 billion default judgement which was assessed because a secretary forgot a letter. They probably won’t have to pay, but even if they settle for a tiny fraction of 1.26 billion, how many frivolous lawsuits do you think one fluke like that could fund?
For that matter, consider patent trolls; they have limited funds and currently operate quite successfully, despite the fact that they are generally suing multinationals who can spend far more than the troll on any given case. How much more effective would they be if those parasites could force their hosts to mount a far less lavish & effective defense than they would otherwise?
I did some reading; apparently it’s long-standing tradition all the way back to colonial times. The author said the Americans likely wanted to discourage litigation, which I suppose is the polite way of saying that early Americans were smuggling indebted IP-infringing scofflaws who didn’t want civil justice to work too well.
I don’t really follow?
If the defending party is only required to match the litigating party’s contribution, the suits will never proceed because the litigating bums can’t afford to pay for a single hour of a lawyer’s time. And while I don’t know if this is true, it makes sense that funding the bums yourself would be illegal.
Well, the original said you could only not fund the legal defense; I don’t see anything there stopping you from putting the bums up in a hotel or something during the lawsuits.
But even if defendants were required to spend the same as the plaintiff, we still run into the issue I already mentioned: So now I simply need to put up 5 or 10k for each bum, guaranteeing me a very crappy legal team but also guaranteeing my target a very crappy legal team.
The less competent the 2 lawyers are, the more the case becomes a role of the dice. (Imagine taking it down to the extreme where the lawyers are so stupid or incompetent they are replaceable by random number generators.) The most unpredictable chess game in the world is between the 2 rankest amateurs, not the current World Champion and #2.
But maybe your frivolous win-rate remains the same regardless of whether you put in 10k or a few million. There’s still a problem: people already use frivolous lawsuits as weapons: forcing discovery, intrusive subpoenas, the sheer hassle, and so on. Those people, and many more, would regard this as a massive enhancement of lawsuits as a weapon.
You have an enemy? File a lawsuit, put in 20k, say, and now you can tell your crappy lawyer to spend an hour on it every so often just to keep it kicking. If your target blows his allotted 20k trying to get the lawsuit ended despite your delaying & harassing tactics, now you can sic your lawyer on the undefended target; if he measures out his budget to avoid this, then he has given into suffering this death of a thousand cuts. And if he goes without? As they say, someone who represents himself in court has a fool for a client....
Well, a lot of what you’re pointing out here is the result of other systemic problems that need other systemic fixes. Judges may not be fast enough to toss out foolish complaints. One might need a two-tier system whereby cheap lawyers and reasonably sane judges could quickly toss almost all the lawsuits, and any that make it past the first bar can get more expensive lawyers. One may need a basic cost of a dismissed suit to the litigant, or some higher degree of loser-pays.
Lawsuits are already weapons. This isn’t obviously a massive enhancement. At most, it increases costs by a factor of 2 for rich defendants, while greatly improving (if it works as planned!) the position of poor defendants.
OK. So the English rule is a weakened version of this; we should expect to see great improvements from it, since between it and contingency-fees and class-actions, poor defendants have much greater financial wherewithal than their poverty would allow. Do we see great improvements? If we don’t, why would we expect your full-strength treatment to work?
And if we can’t justify it on any empirical grounds, why on earth would you put it forward on theoretical grounds when a minute’s thought shows multiple issues with it, to say nothing of how one would actually enforce equitable spending? (The issue would seem to be as difficult & tricky as enforcing campaign finance laws...) And if I, an utter layman to the law, can come up with flaws you seem to acknowledge as real, how many ways could a legal eagle come up with to abuse it?
That’s pretty lame. Reminds me of Yvain’s “Solutions to Political Problems As Counterfactuals”:
I would contribute nothing to the pool, hire a lawyer privately on the side to advise me, and pass his orders down to the public courtroom lawyer. If I have much more money than the other party, and if the money can strongly enough determine the lawyer’s quality and the trial’s outcome, then even advice and briefs prepared outside the courtroom by my private lawyer would be worth it.
Then your lawyer gets arrested.
It sometimes is possible to have laws or guild rules if the prohibited behavior is clear enough that people can’t easily fool themselves into thinking they’re not violating them. Accepting advice and briefs prepared outside the courtroom is illegal, in this world.
I agree with Alicorn. Even if you pass the law, there’s no practical way to stop people from getting private advice secretly, especially in advance of the court date. If you try real hard, private lawyers will go underground (and as the saying goes, only criminals will have lawyers :-) People will pass along illegal samizdat manuals of how to behave in court, half of them actually presenting harmful advice and none of them properly attributed. Congratulations: you have just forced lawyering to become a secret Dark Art.
And this is not an improvement over the current status quo because...?
Do you think this is an improvement? As described, it looks like it’s a repeat of a similar system with similar problems. (And how much of that is because we already know those failings and are best at describing them?)
How would you have legal advice outside of a court case (to ensure predictability) handled?
You seem to be engaging in motivated skepticism.
Consider how much easier it becomes to get a good professional support for the poor side in Eliezer’s setup. There is just too much trouble with “underground” professional representation. A significant portion of expensive lawyers may simply not like the idea of going “underground”, because it hurts their self-image and lowers their status within the community of “white-book” lawyers.
Respect trivial inconveniences.
You’re right, I was deliberately playing devil’s advocate. I should reconsider how likely the failure mode I described is, although I do believe its probability isn’t very small.
Any other advice? What if I want to go to my Ethical Culture Society leader to ask him or her about whether something my in-court lawyer suggests would be right? What if my spouse is a lawyer? What if I’m a lawyer—a really expensive one?
That’s what I think too. Even if you pass the law, there’s no practical way to stop people from getting private advice secretly, especially in advance of the court date. If you try real hard, private lawyers will go underground (and as the saying goes, only criminals will have lawyers :-) People will pass along illegal samizdat manuals of how to behave in court, half of them actually presenting harmful advice and none of them properly attributed. Congratulations: you have just forced lawyering to become a secret Dark Art.
Okay, suppose a lawyer is not allowed to accept briefs. In the Least Convenient case where you happen to be a really expensive lawyer, how much can actually be accomplished courtroom-wise if you talk for a few hours with a much less expensive lawyer? Would any lawyers care to weigh in?
I’m tempted to suggest ‘about the same amount a professional dancer can teach an amateur, and for similar reasons’.
Why would you need to do anything with the inexpensive lawyer? Contribute nothing to the fund—maybe even forfeit your half of whatever the other party contributes—and then represent yourself.
I suspect that the only real solution to the Lawyer Problem is to remove the necessity of the profession—ie, either simplify the law, or cognitively enhance the people to the point where any person who can not hold the whole of the law in his/her head can be declared legally incompetent.
If possible, that would certainly be a great solution.
The original (our-world) Lawyer Problem goes beyond what we’ve discussed here: it involves (ex-) lawyers both deliberately making the law and the case law more and more complex, to increase the value of their services.
That is frelling brilliant.
Have a karma point for using Farscape profanity.
I’m just waiting for LW to develop its own variants of profanities.
“Have at thee, accursed frequentist!”
There’s “woo”.
Mhm. Not enough hard consonants, though—”woo that wooing wooer” doesn’t sound especially angry.
I suggest “materd” as a general insult, meaning “one whose MAp and TERritory Diverge.”
“Morong” might work as an allusion to “moron” and compression of “more wrong”. It’s a little more pronunciation-friendly than “materd”.
Like it.
Very likely everyone’s map diverges from the territory. An insult needs to have a more limited scope.
Hm. Agreed. I suppose I was thinking in terms of pointing out a specific, obvious case. “Being a materd” or something similar.