Bork in 1995:
Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.
Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.
Bork and Olson, Trial Lawyers and Other Closet Federalists, Wash. Times, March 9, 1995.
As I wrote in the comments to Eugene's post below, I don't think that someone with such views is in any way barred morally or otherwise from using the tort system to redress an injury, but as a prominent attorney himself, Bork could instruct his attorneys not to assert "far-fetched legal theories" (e.g., punitive damages for a routine negligence case), or to request a "lottery-like windfall" (over $1 million in damages).
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Bork is represented by Gibson Dunn &Crutcher. Big fancy law firm, but I guarantee plaintiffs' slip-and-fall work isn't among their specialties!
A 79-year-old man slipped and fell in a public and sustained what appear to be serious injuries. He has a theory that it's the Yale Club's fault. His complaint says so, and asks the court, essentially, for whatever he can get.
Is the objection that people have to this that the facts don't support his claim? If so, I'd like to see a source that says what the facts are in more detail than is alleged in the complaint.
Is the objection that he asked for damages he probably can't get? This seems like a silly objection to me, because complaints routinely do this to avoid waiving rights. If Bork's attorneys had made ludicrous settlement demands, that would be different. Erring on the high side when filing a complaint, however, is a different sort of thing.
This strikes me as standard personal injury practice. It's not as if Bork's injuries are fake or minor, it's not as if his attorney approached him about suing, it's not as if Bork is arguing some sort of bogus failure to warn of the obvious theory. It could be that the injuries are his own fault, but that's far from obvious at this point.
Without more facts, it looks to me like people are tripping over themselves to demonstrate their "principles" by throwing Bork under the bus, when it's not clear that he deserves it.
But then again, I'm open to the possibility that I've missed something basic.
Not really. But setting that aside, Judge Bork is someone who has strenuous objections to "standard personal injury practice." That's why this story gets so much attention.
People can endorse changes in the rules of the game for all players, and still unhypocritically take advantage of the existing rules -- after all, their opponents will be taking advantage of the same rules when they have the same opportunity.
(I might make an exception to this principle when the powerful take advantage of rules they oppose when battling the weak, but neither the federal government or the Yale Club could be considered particularly weak opponents.)
So I would say that Bork has every right to have his complaint judged in the courts in this matter, regardless of any remarks he may have made earlier about the tort system.
Three years for negligence here in NY.
--ET
It's not the suit itself, or the money, it's his legal theory which fits into the "It's my fault, but give me money" pattern.
Normally, if settlement negotiations are ongoing, the only reason one would file is if the statute of limitations is in danger of running. You wouldn't file unless/until the negotiations broke down.
(*) I don't do PI work, so perhaps it's different in that context, but I don't see why.
How convenient. It is always nice to make exceptions to our beliefs when those beliefs end up being personally inconvenient. For example, it would be inconvenient for Bernstein to get a job at a private university, even though he does not believe that the public university that employees him as a government employee should exist.
This is nothing more than unprincipled "I don't want to personally live with the consequences of my beliefs" libertarianism. It is both sad and pathetic. Really believing in something means making personal sacrifices sometimes.
This is the natural result of how insurance adjusters are evaluated by their superiors. It is an inefficient system brought about by the carriers becoming way to trial adverse. Why are they so trial adverse? Because of Bork's nemesis - the greedy trial attorneys. It all comes full circle.
David, PI is only a very minor part of my practice, but in my experience (on both P and D sides), filing a suit is the ONLY way to get certain carriers to even cover your medical costs in PI cases. Sometimes you need a little verified discovery to ensure that the 'physical therapy' bills claimed by plaintiff are not actually 'happy ending massage parlor' bills.
Yes, I had a case where that actually occurred. I got a little suspicious that this rear-ender victim (he had given off a creepy vibe in his depo) continued to get three massages a week. I sent out a subpoena for the parlor records, and the case settled before the subpoena was executed.
But it deserves a non-substantive response? You clearly have too much time on your hands.
* Negligence: case is extremely weak -- the fact that he attempted to do something beyond his physical capabilities does not make them negligent -- but may be legally valid.
* $1,000,000 demand: very dubious.
* Attorneys fees demand: frivolous
* Punitive damages demand: frivolous
I think the question is what he would say about someone else filing a similar lawsuit. If that would be "runaway liability system," then he shouldn't file. If he would see it as a legitimate case then he should.