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Comment by JediWing | Hacker News Reader

The solution, as I see it, is to fix the misaligned incentives.

A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.

To fix this, it ought not be the losing plantif who has to pay, but rather in frivolous cases, the losing lawyer ought to pay.

Frivolity can be determined by the judge or jury (perhaps only after unanimous verdicts)

This way, it is the responsibility of the lawyer to take on only cases which have real legal merit, and stop digging for gold.

Edit: I've held this idea for a while and don't see many shortcomings. I would love to see where it falls short if someone disagrees.

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> A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.

No, they are more selective about taking on contingency cases. Every losing contingency case is hours of unpaid work.

"ambulance chaser" is a colloquial term for a reason.

I've sat on a jury for 2 days on a malpractice case that had no factual basis, that relied on a tortured interpretation of medical notes.

We unanimously decided the case for the defendant. Wish we had the opportunity to somehow penalize the lawyer for wasting everybody's time. I'm sure I'm not alone.

The only reason the lawyer took the case was that he was hoping to strike gold, and was a crap enough lawyer that only people who were turned away from better lawyers (because they had no case) came to see him.

Having to pay for the doctor's lawyer sure would have deterred this guy.

The judge can order that in egregious cases. It's not an appropriate role for juries; there are often aspects of the case that the jury doesn't see so they don't have the full picture.

>reason the lawyer took the case was that he was hoping to strike gold,

I'm pretty sure that this works pretty much like spam or nigerian prince scams. If the lawyer works on tens or hundreds of such cases some % of those cases could be won and some % will settle to avoid legal costs. Total income might be high enough to justify unpaid work on other cases. I'm pretty sure that you could even partially automate a lot of things (or at least use some templates) for multiple similar cases thereby reducing the amount of unpaid work.

> "ambulance chaser" is a colloquial term for a reason.

What's the reason, and does that reason contravene legal/judicial ethics?

I am suspicious of slang terms like "ambulance chaser" and "jaywalking" that tend to bias the listener in favor of well-funded corporate interests over individual citizens.

> but rather in frivolous cases, the losing lawyer ought to pay.

nobody would take jobs then unless the chance of winning was 99%.

The lawyer would also in those case being getting charged money to work.

If the finding of frivolity was separate from the verdict, though, it could work. Set the standard as, on a unanimous verdict for the defendant, the jury may decide the case was frivolous on the standard that "no reasonable jury would find the facts as applied to the law to render a verdict in favor of the plantif". It would cause greater scrutiny but cases that have merit would still go forward.

Edit: Also the lawyer would not being charged money to work, they would be getting fined for wasting the court and jury's time. That's like saying a contingency lawyer is working without pay: well yeah, but it's factored into the cost of business. There are still chances for high payout but now there is also a much needed downside.

>the finding of frivolity was separate from the verdict, though,

Oh ok, as long as it isn't applied to every case.

> If the finding of frivolity was separate from the verdict

Isn't this somewhat handled by awarding "token damages" of $1 or similar? The litigating party "won", but it was determined that they were not actually harmed as claimed.

>If the finding of frivolity was separate from the verdict

this on the other hand further increases costs of those frivolous cases requiring a second trial to test frivolousness of the case

I would think this could be simply another (probably quick) round of deliberations by the jury, not a whole other trial.

That's how it works today. A party can claim legal expenses.

There are already rules around frivolous lawsuits which attorneys adhere to.

https://en.wikipedia.org/wiki/Frivolous_litigation

Which attorneys "should" adhere to.

And which judges and juries can mete out punishments for violating, like every law.

But given the current state of frivolous lawsuits, it would seem the criteria needs to be loosened and/or the enforcement stepped up.

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