Ability Of Plaintiffs Research Articles

Exploring the Factors that Determine the Success of Litigation Crowdfunding: Implications for Social Justice

Civil litigation is increasingly expensive; many victims are unable to afford court charges and attorney fees. This limits a plaintiff's ability to sue. Crowdfunding has emerged as a new way to cover expenses. This article explores factors that contribute to success in litigation crowdfunding. Using data from CrowdJustice we study the impact of valence, arousal, and dominance in case description, on the funding success, considering the number of pledges, target amount, description, country, and category of the cases.Our findings show that while valence and arousal are negatively associated, dominance is positively associated, with funding success. All three associations are stronger for public interest cases. We highlight the importance of affective words and offer evidence of affect-driven decision-making in backers seeking to support crowdfunding litigation cases. Next, we highlight the power of the crowd, and show that cases concerning causes with public awareness are most likely to be successful. Therefore, the scale of the support base is crucial. For crowdfunding litigators, attaching the right cause amplifies the impact of affective words on the likelihood of successful funding. This has ethical and justice implications for crowdfunding platform design.

The Press and Libel Before New York Times v. Sullivan

The Press and Libel Before New York Times v. Sullivan

Primary Jurisdiction and the Limits of Measurement in Mass Litigation

This Article examines the use of primary jurisdiction through the lens of institutional economics and the ongoing revolution in pre-suit, plaintiff-side testing in mass litigation. In this setting, primary jurisdiction serves a necessary pro-agency institutional role. The ability of plaintiffs’ attorneys to easily generate sophisticated laboratory testing results has allowed them to create a quasi-regulatory quality-control regime for defendants’ products and extract value from it through enhanced settlements. This offers defendants the burdens of regulation without the benefits of uniformity or policymakers with subject-matter expertise and capacity for public input. Primary jurisdiction enables defendants in mass litigation to move these quasi-regulatory actions back to regulatory settings, where the potential for efficient quality-control standards increases with agency expertise. Shifting decision-making in testing-based actions to agencies then preserves this value from conversion into litigation-based transaction costs. As scientific resolving power and the scope of potentially measurable harm evolve, primary jurisdiction thus functions as a central balancing mechanism allowing corresponding evolution in adjudication.

Who Pays? Fines, Fees, Bail, and the Cost of Courts

In the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly. This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.

Defending Against the Lost Chance Claim Lurking Within Plaintifffs Petition; Lagniappe: How to Avoid Being Taxed with $155,000 of Plaintifffs Costs

This paper examines the latest standards applied by Louisiana courts regarding a plaintiff attorneys attempt to assert a medical malpractice action on the theory of loss of a chance of survival. The paper provides guidance for defense counsel on the best ways to combat a plaintiff's attempt to add a claim for lost chance of survival, particularly when plaintiff attempts to do so at a very late date. The paper also examines the latest Louisiana law regarding a plaintiff's ability to recover costs following a successful jury verdict, and provides guidance to defense counsel on how best to minimize such recovery.

Who Pays for Police Misconduct in Bankrupt Cities?

When a financially distressed city files for bankruptcy, recovery for civil rights violations is at risk. This article examines the impact of bankruptcy on civil rights claims, with an emphasis on allegations of police misconduct resulting in lawsuits under 42 U.S.C. § 1983. We walk through how a bankruptcy filing affects civil rights plaintiffs, starting with the immediate injunction against litigation and debt collection activity, and ending with the legal release of debt and a restructuring plan. Using primary source materials, we offer three brief case studies: Detroit, Vallejo, and San Bernardino. We conclude with suggestions on future steps in research and advocacy.The September 20, 2016 revision of this working paper incorporates the Ninth Circuit decision in Deocampo v. Potts. That decision has important implications for a plaintiff's ability to enforce a judgment against a police officer of a formerly-bankrupt city as well as the officer's ability to seek indemnification from that city.

Sinking Costs to Force or Deter Settlement

This article develops a simple but general model of suit and settlement given symmetric information. Plaintiffs and defendants can choose when and to what extent they sink litigation costs through the use of retainers and detailed pleading. I demonstrate sharp asymmetries in the ability of plaintiffs and defendants to use sunk costs strategically to obtain or deter nuisance-value settlements. The model accounts for the roles of the merits, litigation costs, and bargaining power; incorporates complaints and answers for which parties’ investments in pleading detail are endogenously determined; permits strategic default by the defendant; and nests several existing models of negative-expected-value litigation as special cases. It generates testable, counterintuitive, empirical predictions, and facilitates normative analysis. For example, the model predicts that plausibility pleading standards will have modest effects in deterring low-merit suits but may be harmful to plaintiffs and defendants settling stronger cases. (JEL K41)

A Theory of Pleading, Litigation, and Settlement

The plausibility pleading regime of Twombly and Iqbal has generated continuing controversy and concern over its effects on the ability of plaintiffs, particularly certain categories of civil rights plaintiffs, to bring cases in federal court. I assess the effects of plausibility pleading by undertaking a novel thought experiment: What would a plaintiff’s filing and pleading decisions look like in a world with no pleading standard at all? In other words, what if there were no motions to dismiss for failure to state a claim, and every filed case could reach discovery? I show that in this hypothetical world, with few exceptions plaintiffs file factually detailed, plausible complaints or do not file at all. In short, pleading standards rarely matter. Perhaps most surprisingly, this is true even for cases in which asymmetries of information favor the defendant. Plaintiffs’ attorneys, not judges, are the gatekeepers to court, and pleading practices are driven not by doctrine but by settlement strategy. This analysis generates empirical predictions, which find support in a wide range of qualitative (though hardly conclusive) evidence. Further, this thought experiment may turn the normative critique of Twombly and Iqbal on its head: plausibility pleading may advance, rather than undermine, the “liberal ethos” of the Federal Rules.

Recent Developments in Health Law

When the Supreme Court in PLIVA v. Mensing determined that certain state tort law failure-to-warn claims against generic drug companies were pre-empted by federal drug regulations, the pronouncement was met with substantial criticism. In light of the Court's decision two years earlier in Wyeth v. Levine, where the Court allowed a similar claim against a brand-name drug manufacturer to proceed, many complained the resulting Levine-Mensing dichotomy created an arbitrary distinction between brand-name and generic drugs, allowing an injured patient's ability to recover to hinge solely on the happenstance of whether the individual had taken the brand-name or generic version. But, although Mensing cut back significantly on the ability of plaintiffs to make state law failure-to-warn claims against generic drug manufacturers, the case did not completely prohibit such claims. Instead, the Court banned only failure-to-warn claims premised on an argument that the generic drug company needed to change its label in order to meet state tort law duties. If plaintiffs can advance other theories independent of a formal label change, such as a failure to adequately warn a physician about a recent change to the drug's label, then they may still be able to proceed against generic drug manufacturers.

Direct Regulation of Medical Malpractice Premiums: The Least Dangerous Reform

Medical malpractice is a wrong that society tries to prevent, in part, through its tort system. Like all tort awards, medical malpractice verdicts serve two societal goals: deterrence and victim compensation. Unlike other torts, however, medical malpractice operates in the arena of health care and is therefore the subject of tremendous scrutiny. In response to a perception that medical malpractice lawsuits have an adverse effect on both health care access and health care cost, lawmakers across the country have set their attention on reforming the medical malpractice system. Common reforms change the tort litigation landscape by affecting the ability of plaintiffs to (1) initiate litigation (e.g., reducing the statute of limitations or requiring plaintiffs to obtain certification from experts that their claims have merit); or, (2) litigate the issues (e.g., changing expert testimony requirements); or, most commonly, (3) be compensated upon a verdict or settlement in their favor (e.g. capping damages, limiting joint and several liability, capping attorneys’ fees). Many of these reforms—most notably, damage caps—retard the traditional tort goals of victim compensation and deterrence and impose a substantial cost on the state. This note argues for an alternative reform: direct regulation of malpractice insurance companies and the premiums they charge.

Future Economic Damages

Future Economic Damages

Relative Access to Corrective Speech: A New Test for Requiring Actual Malice

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment. The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As a result, the public figure doctrine looks only to the status of the plaintiff in determining the appropriate degree of fault. But the development of many-to-many media, like the internet, challenges the assumptions that underlie the public figure doctrine. Many-to-many media increase access to the means of mass communication, creating variety among speakers that Court neither considered nor predicted in constructing the public figure doctrine. In such a heterogeneous and dynamic communications environment, the uniform treatment of defamation defendants should be questioned. This Article suggests that in determining whether the actual malice standard should apply, courts should consider not only variations among plaintiffs, but they should also demonstrate sensitivity to the increased diversity among defamation defendants. By considering a plaintiff's ability to avail herself of corrective counter speech not in isolation, but in light of the reach of the defendant's publication, courts can more usefully apply the actual malice standard in the contemporary communications environment.

The Needle in the Haystack

Summary Despite the significant damages in sexual abuse cases, the plaintiff's ability to collect the money awarded in settlement or judgment is often precluded by the limited financial resources of the defendant(s). In this chapter, practicing attorney Julian Hubbard introduces the basics of individual and corporate insurance coverage and reviews the development of very limited coverage in sexual abuse cases in statutory and case law. While direct coverage for sexual abuse injuries is as rare as a “needle in a haystack,” indirect coverage can be found in some cases, especially those in which the acts of negligent individuals other than the perpetrator facilitated the abuse and thus the plaintiff's injuries. After an overview of relevant insurance issues and law, Mr. Hubbard delineates a practical model for research and legal strategies to ensure reaching any available insurance coverage, and explores the benefits and drawbacks of drawing on administrative resources to help pay for survivors' medical and mental health care.

“It’s Darwinism – Survival of the Fittest:” How Markets and Reputations Shape the Ways in Which Plaintiffs’ Lawyers Obtain Clients

The survival of a plaintiffs’ lawyer’s practice depends upon the generation of an ongoing flow of clients with injuries that the civil justice system will compensate adequately. If this requirement is not met, lawyers will leave this aspect of the legal market for more promising ones. If they do, legal services for injured people will be diminished as a result. In order to find out how this personal services legal market is defined and developed, we interviewed ninety‐five plaintiffs’ lawyers in Texas. These lawyers use four major strategies to get clients: client referrals, lawyer referrals, direct marketing, and other referrals. What any particular lawyer does is shaped by the geographic market from which clients are drawn, and by the lawyer’s reputation. Our findings provide fresh insights for the empirical literature on plaintiffs’ lawyers, and they provide an empirical context for assessing the potential impact of changes in the civil justice system, like tort reform, on the ability of plaintiffs’ lawyers to obtain clients.

Mareva Injunctions and Third Parties: Exposing the Subtext

The efficacy of an injunction may be dependent not only upon the defendant's conduct but also the compliance of those who are strangers to the proceedings. This is particularly evident in the context of Mareva injunctions, where the defendant's property is commonly held by a third party. The plaintiff's ability to prevent the dissipation of assets or their removal from the jurisdiction prior to judgment may be pivotal to the viability of an action. An injunction directed to the defendant alone should theoretically achieve that end. However, the defendant may be in a position to subvert the order by indirect means, typically through a controlling interest in a company, or the complicity of close family members. Such conduct is not only prejudicial to the plaintiff, but also an affront to the administration of justice. This article will assess the role of injunctive relief against transferees who may in all other respects have no connection with the substantive proceedings.' Case law has not forged any pronounced distinctions between various defendant-third party dealings. However by examining the dynamics of certain relationships and the basis on which property is held, some common categories and unifying principles emerge. In turn it becomes possible to identify the defining features of Mareva relief and the imperatives that underlie the ad hoc extension of this jurisdiction. This, then, is the subtext to be exposed.