Should You Be Allowed to Invest in a Lawsuit?(nytimes.com)
nytimes.com
Should You Be Allowed to Invest in a Lawsuit?
http://www.nytimes.com/2015/10/25/magazine/should-you-be-allowed-to-invest-in-a-lawsuit.html
106 comments
https://en.wikipedia.org/wiki/Champerty_and_maintenance
Still illegal in canada[0]:
Although the type of conduct that might constitute champerty and maintenance has evolved over time, the essential thrust of the two concepts has remained the same for at least two centuries. Maintenance is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse. Champerty is an egregious form of maintenance in which there is the added element that the maintainer shares in the profits of the litigation. Importantly, without maintenance there can be no champerty.
0. http://www.canlii.org/en/on/onsc/doc/2012/2012onsc5053/2012o...
Still illegal in canada[0]:
Although the type of conduct that might constitute champerty and maintenance has evolved over time, the essential thrust of the two concepts has remained the same for at least two centuries. Maintenance is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputes (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse. Champerty is an egregious form of maintenance in which there is the added element that the maintainer shares in the profits of the litigation. Importantly, without maintenance there can be no champerty.
0. http://www.canlii.org/en/on/onsc/doc/2012/2012onsc5053/2012o...
a taboo against usury - pity it didn't last...
What? Most states have usury laws right now [1], as do plenty of places outside the US.
[1] http://www.alqlist.com/interestratesummary.html
[1] http://www.alqlist.com/interestratesummary.html
And most of them have loopholes big enough to drive a truck through. (See payday loans, title loans, hard money loans, merchant cash advance, etc., etc.)
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I think the concern with investing in lawsuits should be focused on secondary motives. Lawsuits with lots of investors will have attorneys with secondary motives, such as keeping the case active as long as possible to continue to attract more investors, rather than resolve it. Perpetual cases could bog down courts in never-ending lawsuits and countersuit challenges, a legal version of Mutually Assured Destruction.
Do lawsuit claimants have a right to consume unbounded judicial time and public money (to pay for judical staff, the courts)? Legal cases stuck in court for years consume time and energy that could be directed at resolving other legal challenges. Time spent in court is ultimately a tax on the public, regardless of the outcome.
Do lawsuit claimants have a right to consume unbounded judicial time and public money (to pay for judical staff, the courts)? Legal cases stuck in court for years consume time and energy that could be directed at resolving other legal challenges. Time spent in court is ultimately a tax on the public, regardless of the outcome.
Plaintiffs have zero interest in lengthening cases and neither do litigation funders. Litigation funders are paying the attorney's fees and ending the case more quickly reduces how much they have to invest. Reaching a resolution quickly also reduces how long they have to wait to get a recovery.
Plaintiffs and litigation funders have no interest in lengthening cases once they feel they have a high likelihood of winning. Until that point, lengthen away! Better to string it out and win than finish it up quick and lose.
> Better to string it out and win than finish it up quick and lose.
In practice, it's the defense that will string out a case hoping that the plaintiff runs out of money before the case reaches judgment on the merits. Plaintiffs want to win quick, or at least lose quick before they invest too much in the case.
In practice, it's the defense that will string out a case hoping that the plaintiff runs out of money before the case reaches judgment on the merits. Plaintiffs want to win quick, or at least lose quick before they invest too much in the case.
That's a strategy both sides choose to employ actually. Imagine BigCo suing LittleCo notionally for infringing one of its patents, but really it's to drain LittleCo's coffers so that LittleCo is out of business and can't compete with BigCo in market X any longer.
But in this scenario BigCo isn't the one needing outside financing, is it?
> But in this scenario BigCo isn't the one needing outside financing, is it?
No, I was refuting the idea that only defendants stretched litigation out. The entity with more money stretches litigation out, doesn't matter which side they're on.
No, I was refuting the idea that only defendants stretched litigation out. The entity with more money stretches litigation out, doesn't matter which side they're on.
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Wouldn't such behavior be considered unethical and possibly grounds for disbarment? After all, that's definitely not in the interests of the client.
You'd think but there are issues like this today and it's difficult to prove depending on the circumstances (at least prove to the point where they can get in trouble with the bar).
Anecdotally when my father was going through his divorce his lawyer told him not to take the settlement with his now ex-wife and his lawyer promised she could get him better terms and an expedited divorce and would only need to go to one court appearance.
Two additional retainers later and she told my father he had to settle for what was offered at the court house which was a worse settlement and that she event told him she didn't feel comfortable negotiating beyond what was offered because it was "a great deal". I have a hard time believing she had my father's best interests in mind and just kept the case going for a bit longer.
I would expect a system like this would exacerbate this type of behavior.
Anecdotally when my father was going through his divorce his lawyer told him not to take the settlement with his now ex-wife and his lawyer promised she could get him better terms and an expedited divorce and would only need to go to one court appearance.
Two additional retainers later and she told my father he had to settle for what was offered at the court house which was a worse settlement and that she event told him she didn't feel comfortable negotiating beyond what was offered because it was "a great deal". I have a hard time believing she had my father's best interests in mind and just kept the case going for a bit longer.
I would expect a system like this would exacerbate this type of behavior.
I know of one long running case concerning pensions (British Telecom Section A) that was dragged out for well over a decade - as the longer it went on more pensioners would have died so reducing the cost.
Delaying vs being thorough would be incredibly tough to prove.
To a degree this happens already with large vs small company law suits, where the larger company maintains proceeding in some form til the other small business runs out of cash or gives up.
To a degree this happens already with large vs small company law suits, where the larger company maintains proceeding in some form til the other small business runs out of cash or gives up.
Was anyone involved in SCO v IBM disbarred?
But the investors want to make money, and that only comes when a judgement is reached. I can envisage the financial imperative putting a time limit on the investor/lawyer contract.
Not only that, consider all the other parties that wish to do you or your company harm could invest in lawsuits against you brought by parties that have nothing to do with them.
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I think the secondary motive to be concerned about is not length of time in court, but the filing of marginal lawsuits because they can attract financing.
Lawsuit financing is a speculative investment. We've seen repeatedly that the more money there is to invest speculatively, the more people and companies start pushing the envelope to attract investment.
In the last 20 years we've seen big bubbles in Internet services and consumer mortgages. What would be the effect of a bubble in lawsuits? Aside from the financial harm, it might crowd out or delay more worthy court cases.
Lawsuit financing is a speculative investment. We've seen repeatedly that the more money there is to invest speculatively, the more people and companies start pushing the envelope to attract investment.
In the last 20 years we've seen big bubbles in Internet services and consumer mortgages. What would be the effect of a bubble in lawsuits? Aside from the financial harm, it might crowd out or delay more worthy court cases.
Outside investors don't invest in 'marginal lawsuits.' One of the absolutely critical considerations for lawyers undertaking contingency cases is that they believe the case isn't marginal. I fail to see why an outsider would embrace more risk than such lawyers.
This is analogous to saying "one of the absolutely critical considerations for banks undertaking mortgage lending is that they believe each loan is likely to be paid back. I fail to see why an outsider would embrace more risk than such banks."
But that is precisely what happened leading up to the 2008 financial crisis. And it happened because of outside financing. When banks were risking their own money, they maintained careful underwriting standards. When banks were risking someone else's money--and reaping fees instead--they relaxed their underwriting standards to increase volume.
A law firm undertaking a contingency case better be damn sure they are likely to win, because they are risking their own capital. A law firm with outside financing will get paid whether or not they lose.
But that is precisely what happened leading up to the 2008 financial crisis. And it happened because of outside financing. When banks were risking their own money, they maintained careful underwriting standards. When banks were risking someone else's money--and reaping fees instead--they relaxed their underwriting standards to increase volume.
A law firm undertaking a contingency case better be damn sure they are likely to win, because they are risking their own capital. A law firm with outside financing will get paid whether or not they lose.
It seems like the funding coming from outside investors wouldn't really increase the incentive for lawyers to drag things out. If they're paid by the hour, then they already have that incentive, and resist it or not at their own discretion. If they're paid contingently, then their motivation is to get a win as quickly as possible, or drag things out if that will make the payment much larger. Again, they have that motivation regardless of who's paying them. What this would change is make it possibly less likely that the 'client' would run out of money before you can finish the job.
There should not be any communication between the lawyers and investors, and that rule should be enshrined in the ABA Code of Conduct in the same way that ethical walls are a requirement.
If the client wants to manage the relationship with investors, set expectations for success, returns, etc...that's one thing. But the lawyer is an advocate for the client, and that relationship is compromised the moment s/he begins feeling pressure from the investors.
If the client wants to manage the relationship with investors, set expectations for success, returns, etc...that's one thing. But the lawyer is an advocate for the client, and that relationship is compromised the moment s/he begins feeling pressure from the investors.
That is what happens in practice, because communication between lawyers and investors are not protected by attorney-client privilege and neither the lawyers nor the funders want to risk compromising the suit by communicating with each other.
> I think the concern with investing in lawsuits should be focused on secondary motives.
Consider a community where many people are invested in one side of a lawsuit. That could put a lot of pressure on the judge and jury to produce the popularly desired outcome.
Consider a community where many people are invested in one side of a lawsuit. That could put a lot of pressure on the judge and jury to produce the popularly desired outcome.
Judges and juries are frequently under pressure. Popularly desired outcomes aren't unusual.
Sounds like something the free market would solve, no?
I'm not sure I follow you. The legal system is outside of the free market.
Can't believe people still naively think this would work in the light of all the corruption we observe all the time.
Corruption is, by definition, bribing government officials for personal gain. Therefore corruption can only exist in the areas that are not fully free, but are regulated by a government.
So I set up "toms safety certification" in libertopia and a company that sells children's toys that cause children die from choking on small parts bribe me to let them pass and I accept, this is not corruption?
Corruption by definition is not bribing government officials. Show me that definition? Corruption by definition is actually fraudulent activity by those in power, where government is one entity that has power. Removing government to remove corruption is quite frankly insane and only makes sense if you change the definition of corruption to mean "government corruption".
Corruption by definition is not bribing government officials. Show me that definition? Corruption by definition is actually fraudulent activity by those in power, where government is one entity that has power. Removing government to remove corruption is quite frankly insane and only makes sense if you change the definition of corruption to mean "government corruption".
The difference is that if private institution that issues "toms safety certification" takes a bribe it is a very shortsighted strategy - such certificates will be very soon considered untrustworthy and general public will start to ignore them, therefore putting certificate institution out of business. Government-powered institutions can take bribes for years, or even decades without ever being punished for that, or being put out of business.
And yes, limiting government competencies is the best way to limit corruption.As one of Polish politicians put it:
"You don't fight the leeches by catching them by their tails, you fight them by draining the swamp they live in."
And yes, limiting government competencies is the best way to limit corruption.As one of Polish politicians put it:
"You don't fight the leeches by catching them by their tails, you fight them by draining the swamp they live in."
> The difference is that if private institution that issues "toms safety certification" takes a bribe it is a very shortsighted strategy ... Government-powered institutions can take bribes for years, or even decades without ever being punished for that, or being put out of business.
That's a theory, but the theory does not describe reality. Reality is that human beings defraud each other frequently, and in fact that is one of the main reasons we have governments, laws, and regulations. When you buy a house or obtain a loan or some software, or walk down the street, do you assume nobody would be doing anything corrupt or fraudulant, just trusting everyone? Of course not.
Anarchy leads to chaos and conflict. Caveat emptor.
EDIT: Major edit
That's a theory, but the theory does not describe reality. Reality is that human beings defraud each other frequently, and in fact that is one of the main reasons we have governments, laws, and regulations. When you buy a house or obtain a loan or some software, or walk down the street, do you assume nobody would be doing anything corrupt or fraudulant, just trusting everyone? Of course not.
Anarchy leads to chaos and conflict. Caveat emptor.
EDIT: Major edit
Maybe I'm confused, but reality definitely includes several independent certification organizations.
e.g UL, NSF International.
And of course when I buy a house the government doesn't provide an inspector, instead I have to choose from any number of independent home inspectors (some better than others).
Now of course they're often confirming that construction has been done to code (plumbing, electrical, etc), but it's not a far jump to say that these codes could be established and maintained by independent groups like IEEE rather than the specific city and state authorities.
And of course when I buy a house the government doesn't provide an inspector, instead I have to choose from any number of independent home inspectors (some better than others).
Now of course they're often confirming that construction has been done to code (plumbing, electrical, etc), but it's not a far jump to say that these codes could be established and maintained by independent groups like IEEE rather than the specific city and state authorities.
> it's not a far jump to say that these codes could be established and maintained by independent groups like IEEE rather than the specific city and state authorities.
It's a bit of a jump. The "independent" groups are not independent but are run by the inudstry being regulated, and will act accordingly. Government is responsible to its citizens.
It's a bit of a jump. The "independent" groups are not independent but are run by the inudstry being regulated, and will act accordingly. Government is responsible to its citizens.
Ok, I can see I need to clarify my point. I am not opposed to a government or laws or regulations as such. What I am opposed to are laws and regulations that give some officials power to make arbitrary decisions granting one individual or company permission to do something and declining similar permission to another individual or company. Such decision-making power is the root of corruption. Some regulations are inevitable, but we should try to keep their number at the minimum.
I'm glad you understand that corruption is not exclusive to societies with government now.
Safety certification businesses competing with each other will become a function of publicity above all else, who can market and present themselves in the best way over which certificate authority actually is most stringent.
Individuals generally do not have the time or skill to evaluate which safety certification meets their own values (and if in fact their own values are even sensible and rational!).
This is why it's generally better (note: not perfect) to trust this function to a government who probably will do a better job and can be more trusted of it than a for profit institution that has conflict of interest baked into their entire model.
Safety certification businesses competing with each other will become a function of publicity above all else, who can market and present themselves in the best way over which certificate authority actually is most stringent.
Individuals generally do not have the time or skill to evaluate which safety certification meets their own values (and if in fact their own values are even sensible and rational!).
This is why it's generally better (note: not perfect) to trust this function to a government who probably will do a better job and can be more trusted of it than a for profit institution that has conflict of interest baked into their entire model.
Yes of course you should. This is no different than a lawyer taking a case on contingency. It provides people without the means to hire a legal team a way to take on more well-financed opponents.
While abuse of the legal system is certainly a problem, the way to solve it is not limit financing. That only increases economic inequality. It's like saying we can solve the SF housing crisis by banning mortgages.
While abuse of the legal system is certainly a problem, the way to solve it is not limit financing. That only increases economic inequality. It's like saying we can solve the SF housing crisis by banning mortgages.
Didn't Microsoft do this with SCO vs Linux though? In that case, it was big incumbent interested in squashing a scrappy start-up disrupting the industry.
In a case like that, it seems like a tool to perpetuate economic inequality.
In a case like that, it seems like a tool to perpetuate economic inequality.
Yes, but how do you stop that? Isn't any investment in a company involved in litigation implicitly an investment in the litigation? (Or at least a bet that the litigation isn't material to their business.)
The whole SCO vs IBM case was pretty unscrupulous, sleazy, and opportunistic, I agree. I'm not arguing that I have the solution to stop abuses like this. I'm saying that limiting financing is not it.
The whole SCO vs IBM case was pretty unscrupulous, sleazy, and opportunistic, I agree. I'm not arguing that I have the solution to stop abuses like this. I'm saying that limiting financing is not it.
> Yes, but how do you stop that?
Not by limiting financing, but by recognizing and shutting down barratry and stunts.
Not by limiting financing, but by recognizing and shutting down barratry and stunts.
Microsoft only needed to go through SCO to hide their involvement in the case. If they hadn't cared about a possible DoJ investigation MS could have simply bought SCO and brought the suit themselves. Also, SCO's main lawsuit was against IBM, the complete opposite of a "scrappy start-up".
I'm not entirely certain why, but the logic you employ here strikes me as very similar to the justifications used to support the Citizens United ruling.
The abuse of the legal system is, from my perspective, extremely tied to the fiscal means of the involved parties. I say this having been called to potentially be on a jury involving a claim of breach of confidentiality over a Rothko painting, asking for more than $30 million (eventually the jury verdict was a pyrrhic victory of $500,000 - likely the cost of the suit in the first place).
I guess what I'm saying is that for small-time folks, even judgments in small-claims court are tenuous in enforcement, because...well...there's not enough money involved for authorities and other entities to follow through. To me that's a distortion of the purpose of the legal system, and one where money certainly plays a role. Rather, economic inequality may result in justice inequality (a study of this would be very helpful).
The abuse of the legal system is, from my perspective, extremely tied to the fiscal means of the involved parties. I say this having been called to potentially be on a jury involving a claim of breach of confidentiality over a Rothko painting, asking for more than $30 million (eventually the jury verdict was a pyrrhic victory of $500,000 - likely the cost of the suit in the first place).
I guess what I'm saying is that for small-time folks, even judgments in small-claims court are tenuous in enforcement, because...well...there's not enough money involved for authorities and other entities to follow through. To me that's a distortion of the purpose of the legal system, and one where money certainly plays a role. Rather, economic inequality may result in justice inequality (a study of this would be very helpful).
I'm not entirely certain why, but the logic you employ here strikes me as very similar to the justifications used to support the Citizens United ruling.
I'm not certain why, either, seeing as how Citizens United was about core political speech, Federal government censorship of a video about a candidate for federal office, which if the First Amendment, specifically:
Congress shall make no law ... abridging the freedom of speech, or of the press
Means anything, it means such speech cannot be abridged.
I'm not certain why, either, seeing as how Citizens United was about core political speech, Federal government censorship of a video about a candidate for federal office, which if the First Amendment, specifically:
Congress shall make no law ... abridging the freedom of speech, or of the press
Means anything, it means such speech cannot be abridged.
I guess I mean in practical outcomes - that money equates to speech, therefore freedom of money in politics has done the exact opposite of campaign finance reform.
No freedom is or has ever been absolute, certainly not 1st amendment freedoms (e.g. fraud).
The only speech I'm talking about, the only speech which was the subject of Citizens United, is core political speech.
In that context, in the traditional US context, there's no "fraud", AKA criminal libel. Although I don't agree with the extremes of New York Times Co. v. Sullivan, which removed useful feedback in the system in the civil law arena, current case law makes protection of core political speech all but "absolute".
In that context, in the traditional US context, there's no "fraud", AKA criminal libel. Although I don't agree with the extremes of New York Times Co. v. Sullivan, which removed useful feedback in the system in the civil law arena, current case law makes protection of core political speech all but "absolute".
To paraphrase the late great Hunter S. Thompson:
"There was a rumor going around the circle of journalists, and while I was the one who started the rumor, its existence meant I could report it as a fact."
"There was a rumor going around the circle of journalists, and while I was the one who started the rumor, its existence meant I could report it as a fact."
My gut tells me that this is bad. However, intellectually I know that our court system is heavily skewed towards people and organizations with lots of money. So if this is a tool to help level the playing field, I'm all for it. If this swamps the courts, all the better, because that will force legislators to act, which will then cause a debate, which will be useful to society.
"If this swamps the courts, all the better, because that will force legislators to act, which will then cause a debate, which will be useful to society."
Considering the amount of problems that currently exist and that forced nobody to do much, I don't think the "if <bad thing>, then <debate> and <better society>" idea is a particularly good bet.
Considering the amount of problems that currently exist and that forced nobody to do much, I don't think the "if <bad thing>, then <debate> and <better society>" idea is a particularly good bet.
It's akin to the originally Marxist notion of "heightening the contradictions".
http://acceleratethecontradictions.blogspot.com/2010/04/acce...
The theory is that some system is inherently bad or broken but people in general don't quite realize it, so if it gets worse it will be more obviously bad and then they'll then actually deal with it. Although sometimes this kind of behavior does happen (for example, someone choosing to go to a doctor only after an illness takes a serious turn for the worse), it seems like a risky theory of social change.
Maybe the powers or institutions you oppose are more entrenched or more adaptable than you expect, or maybe the public is less sympathetic to your analysis of the situation than you expect, or less motivated or more defeatist.
http://acceleratethecontradictions.blogspot.com/2010/04/acce...
The theory is that some system is inherently bad or broken but people in general don't quite realize it, so if it gets worse it will be more obviously bad and then they'll then actually deal with it. Although sometimes this kind of behavior does happen (for example, someone choosing to go to a doctor only after an illness takes a serious turn for the worse), it seems like a risky theory of social change.
Maybe the powers or institutions you oppose are more entrenched or more adaptable than you expect, or maybe the public is less sympathetic to your analysis of the situation than you expect, or less motivated or more defeatist.
"it seems like a risky theory of social change."
It implicitly and falsely assumes that everybody will agree on what the solution is. In the presence of differences brought on not merely by "false consciousness" but by legitimate differences in opinions and desires, it fails the basic Kantian imperative to not do something that breaks society if everybody does it, because it means that everybody who disagrees with some policy, which is always somebody, should try to break things, rather than fix things. In the local vernacular, this "scales poorly".
(I am really tempted to say that Marxists are prone to this, but it would be an over-specific adjective. Truth is, almost everybody "knows" that deep down, everybody else is secretly really like them, and it's just a lack of knowledge or external influence that leads to apparently disagreements. However, the evidence overwhelmingly contradicts this belief. Even in the presence of hostile external actions or lack of knowledge, well, how do you know that you are not the one lacking knowledge or subject to external influence? And many people's value systems legitimately differ.)
It implicitly and falsely assumes that everybody will agree on what the solution is. In the presence of differences brought on not merely by "false consciousness" but by legitimate differences in opinions and desires, it fails the basic Kantian imperative to not do something that breaks society if everybody does it, because it means that everybody who disagrees with some policy, which is always somebody, should try to break things, rather than fix things. In the local vernacular, this "scales poorly".
(I am really tempted to say that Marxists are prone to this, but it would be an over-specific adjective. Truth is, almost everybody "knows" that deep down, everybody else is secretly really like them, and it's just a lack of knowledge or external influence that leads to apparently disagreements. However, the evidence overwhelmingly contradicts this belief. Even in the presence of hostile external actions or lack of knowledge, well, how do you know that you are not the one lacking knowledge or subject to external influence? And many people's value systems legitimately differ.)
Truth is, almost everybody "knows" that deep down, everybody else is secretly really like them, and it's just a lack of knowledge or external influence that leads to apparently disagreements.
That's actually the liberal (in the US sense)/Left conceit, than man is very malleable, that simply by supplying the correct knowledge and/or external influence (AKA environment in the non-strictly biological sense) can be changed. In practice, at the extreme, those who refuse to be changed end up in a forced labor camp if they're lucky.
The position of the right was well expressed by one of my favorite history professors, who said to my and my fellow STEM students' great applause that "Original sin is an empirical observation."
As you say, "the evidence overwhelmingly contradicts this belief."
That's actually the liberal (in the US sense)/Left conceit, than man is very malleable, that simply by supplying the correct knowledge and/or external influence (AKA environment in the non-strictly biological sense) can be changed. In practice, at the extreme, those who refuse to be changed end up in a forced labor camp if they're lucky.
The position of the right was well expressed by one of my favorite history professors, who said to my and my fellow STEM students' great applause that "Original sin is an empirical observation."
As you say, "the evidence overwhelmingly contradicts this belief."
Absolutely this would increase frivolous but likely successful lawsuits. Much like patent law today. Justice IMO should not be tied to financial gain as much as is realistic.This is why I much prefer systems were personal trauma/compensation settlements are not near the levels you read about in some US cases, more about covering direct costs.
That said if they did do something like this I suspect the most reasonable way would be to treat it like political donations, similar to some countries where only citizens can donate, donations are transparent and capped as lower levels.
That said if they did do something like this I suspect the most reasonable way would be to treat it like political donations, similar to some countries where only citizens can donate, donations are transparent and capped as lower levels.
Consider that many civil legal disagreements end in a settlement because one or both of the parties cannot afford the time and the stress of a legal battle. In that case a third party who pledges support to either of them might easily influence the settlement agreement.
Consider this very realistic scenario: Two parties jointly own a piece of real estate. One of the parties wants to sell the property but the other party does not, because the market is not prime for it. They also cannot afford to buy the others share themselves. So they have a legal disagreement. This will most likely end in settlement as none of them wants to actually go to court. Now a property developer comes in and pledges to fund the guy who wants to sell. That skews their settlement agreement in favour of him and the other guy is forced to sell (to the property developer obviously) at below market value.
Consider this very realistic scenario: Two parties jointly own a piece of real estate. One of the parties wants to sell the property but the other party does not, because the market is not prime for it. They also cannot afford to buy the others share themselves. So they have a legal disagreement. This will most likely end in settlement as none of them wants to actually go to court. Now a property developer comes in and pledges to fund the guy who wants to sell. That skews their settlement agreement in favour of him and the other guy is forced to sell (to the property developer obviously) at below market value.
In some jurisdictions this third party involvement or support may in some circumstances be considered illegal; it is heavily frowned upon and may even lead to a criminal charge of barratry if the suit is seen to be frivolous or harassing (i.e. forcing someone to settle when they otherwise would not have).
> the other guy is forced to sell (to the property developer obviously) at below market value.
Why is he forced to sell at below market value? I'm not experienced at joint ownership of real estate, but I would assume that if you own real estate jointly with other partners, and the result of the lawsuit is that you're required to sell, then you can put the property on the market and fetch the current market price from the best available offer.
Why is he forced to sell at below market value? I'm not experienced at joint ownership of real estate, but I would assume that if you own real estate jointly with other partners, and the result of the lawsuit is that you're required to sell, then you can put the property on the market and fetch the current market price from the best available offer.
Because the property developer funded the guy who wants to sell, meaning the other party has to fund a legal battle themselves or sell.
It sounds like you're saying that the party might owe legal expenses. That's a different issue than the market value of the property.
Edit: I agree it's somewhat ethically murky if the real estate developer, who also wants to buy the property, is funding the partner-who-wants-to-sell's lawsuit. However, I would expect that if that lawsuit is successful, the parties would be required to sell the property, but not necessarily to the real estate developer - rather, they would be required to put it on the market and fetch a fair market price like a normal real estate sale. I don't see why the other partner would be forced to accept less than the highest offer on the property, which might or might not be the developer.
Edit: I agree it's somewhat ethically murky if the real estate developer, who also wants to buy the property, is funding the partner-who-wants-to-sell's lawsuit. However, I would expect that if that lawsuit is successful, the parties would be required to sell the property, but not necessarily to the real estate developer - rather, they would be required to put it on the market and fetch a fair market price like a normal real estate sale. I don't see why the other partner would be forced to accept less than the highest offer on the property, which might or might not be the developer.
It's the difference between someone selling a house in 2009, vs. waiting until 2015 to sell it.
A sale will always fetch the current market value (pretty much by definition), but market value fluctuates. Sometimes just the difference between selling in January vs. May can make a difference in the final price.
A sale will always fetch the current market value (pretty much by definition), but market value fluctuates. Sometimes just the difference between selling in January vs. May can make a difference in the final price.
While in theory, I agree that this could really give underdogs a way to crowd-fund against well funded adversaries, I think in practice, the added obstacle of needing to organize will always give singular entities that are already wealthy the upper hand to jump in with large sums of money and turn the tables. This is exactly what has happened with the Citizens United ruling. In theory, it gives everyone equal chance, but that's assuming that wealth and prosperity and the ability or organize is equal amongst all interested parties. And that is turning out to be very far from the truth.
Interesting. A few years back I led a project at a Startup Weekend that was about crowd-sourced legal defense. (LVLR)
http://sandiego.startupweekend.org/2011/03/08/9-new-startups...
Of course it wasn't a product that was more than a prototype, but I am fully onboard with crowd funding playing a much larger role in the world than it currently does - whether it's down to a) investing, b) getting some sort of other reward/product or c) more directed alternative to typical charity.
What's discussed in the article was one of the ideas my product guy and I bandied about, but it didn't seem plausible at the time... although, when the JOBS act was passed I did feel that maybe it was possible if you could somehow incorporate your lawsuit?
Right now I'm the lead engineer for a crowd-funded charity site and sometime in the not-too-distant future I'd like to return to this.
http://sandiego.startupweekend.org/2011/03/08/9-new-startups...
Of course it wasn't a product that was more than a prototype, but I am fully onboard with crowd funding playing a much larger role in the world than it currently does - whether it's down to a) investing, b) getting some sort of other reward/product or c) more directed alternative to typical charity.
What's discussed in the article was one of the ideas my product guy and I bandied about, but it didn't seem plausible at the time... although, when the JOBS act was passed I did feel that maybe it was possible if you could somehow incorporate your lawsuit?
Right now I'm the lead engineer for a crowd-funded charity site and sometime in the not-too-distant future I'd like to return to this.
A cause of action (a lawsuit) has always been like a property interest. As such, through an assignment, you can buy and sell it, mortgage it, put a lien on it, and do about everything else you could do with a property interest. I have never heard of anyone selling shares in a cause of action, though I don't see why this would not conform to existing law, assuming you comply with SEC regulation on the sale of securities.
It's an interesting idea. However, the financial crisis of '08 happened in part because wall street innovation allowed for the selling of shares of mortgage portfolios, so I would be cautious where this goes.
The arguments for and against it in the article seem to mirror the arguments regarding a lawyer's contingent fee interest. Some would say contingency fees have done harm to the legal system. In fact, some states limit contingency fee awards in medical malpractice to limit those types of lawsuits. So, if your goal is to limit lawsuits, this kind of arrangement probably would be bad.
It's an interesting idea. However, the financial crisis of '08 happened in part because wall street innovation allowed for the selling of shares of mortgage portfolios, so I would be cautious where this goes.
The arguments for and against it in the article seem to mirror the arguments regarding a lawyer's contingent fee interest. Some would say contingency fees have done harm to the legal system. In fact, some states limit contingency fee awards in medical malpractice to limit those types of lawsuits. So, if your goal is to limit lawsuits, this kind of arrangement probably would be bad.
It might be spectacularly bad judgment, but I really like the idea of creating derivatives based on slicing up tranches of lawsuit results. Okay, that's almost certainly a bad idea. Even if you could model the payouts in Haskell, as we learned earlier today.
Good thing we also have the First Amendment.
Citizens United v. FEC -- majority opinion essentially said that money is free speech ("Because spending money is essential to disseminating speech..."). And spending that money to fund litigation seems like a very strong kind of speech, whether or not its motivated by greed (profit).
Citizens United v. FEC -- majority opinion essentially said that money is free speech ("Because spending money is essential to disseminating speech..."). And spending that money to fund litigation seems like a very strong kind of speech, whether or not its motivated by greed (profit).
And spending that money to fund litigation seems like a very strong kind of speech
Not to me.
Compare to Citizens United, which was about government censorship of core political speech, a video pertaining to a current candidate for office (or even a book, per the government's arguments). It's well established that "commercial speech", e.g. advertisements for products, can be subject to severe regulation (e.g. tobacco and alcohol) that's anathema to political speech.
And this sure sounds more like commercial than political speech; heck, think of all the laws, rules and regulations that pertain to what you can "say" in a lawsuit, in your written pleadings, oral arguments, etc. Even talking to the public about it can be constrained.
Not to me.
Compare to Citizens United, which was about government censorship of core political speech, a video pertaining to a current candidate for office (or even a book, per the government's arguments). It's well established that "commercial speech", e.g. advertisements for products, can be subject to severe regulation (e.g. tobacco and alcohol) that's anathema to political speech.
And this sure sounds more like commercial than political speech; heck, think of all the laws, rules and regulations that pertain to what you can "say" in a lawsuit, in your written pleadings, oral arguments, etc. Even talking to the public about it can be constrained.
What does it mean in a one-vote/voice-per-citizen democracy when a small number of people with money can buy more "free speech", allowing them to dominate the political dialog and crowd out dissenting voices who have less money?
To me, that seems to create a political field where citizens of great wealth are "more equal" than citizens with less.
To me, that seems to create a political field where citizens of great wealth are "more equal" than citizens with less.
My preferred general approach is that the answer to speech you don't like is more speech. Very specifically, large numbers of people can in turn collectively buy their own "free speech" through various forms of non-profits. Right now, compare the 5 million members of the NRA vs. Michael Bloomberg, who is the only person currently putting serious money into gun control.
In a way, that supports your case, in the Colorado, Washington and Oregon wins he's achieved (through non-profits fronts he's established, after Mayors Against Illegal Guns became so notorious for the number of criminal mayors in it). But not generally, nationally the needle hasn't moved aside from Obama and Hillary! publicly calling for the confiscation of the nation's handguns and semi-auto long guns (!).
But our response is not to try to muzzle him, let alone support a law like McCain-Feingold which muzzled the NRA and therefore its 5 million members working in collective action prior to it being spiked by Citizens United.
I'll also note that money only gets you a hearing, I simply don't believe that big money can "dominate the political dialog and crowd out dissenting voices who have less money" without concurrent capture of gatekeepers (like the Federal government in the case of McCain-Feingold...). The examples are legion, the latest being ¡Jeb! Bush's total failure to gain any traction outside of big money sources.
(I recently came across an analysis that to win the Presidency, you've got to do well at both getting "big" and "small" money. Hmmm, like Obama did. By that metric, watch Cruz, and of course Trump is a wildcard, not needing either and currently not playing that game at all.)
In a way, that supports your case, in the Colorado, Washington and Oregon wins he's achieved (through non-profits fronts he's established, after Mayors Against Illegal Guns became so notorious for the number of criminal mayors in it). But not generally, nationally the needle hasn't moved aside from Obama and Hillary! publicly calling for the confiscation of the nation's handguns and semi-auto long guns (!).
But our response is not to try to muzzle him, let alone support a law like McCain-Feingold which muzzled the NRA and therefore its 5 million members working in collective action prior to it being spiked by Citizens United.
I'll also note that money only gets you a hearing, I simply don't believe that big money can "dominate the political dialog and crowd out dissenting voices who have less money" without concurrent capture of gatekeepers (like the Federal government in the case of McCain-Feingold...). The examples are legion, the latest being ¡Jeb! Bush's total failure to gain any traction outside of big money sources.
(I recently came across an analysis that to win the Presidency, you've got to do well at both getting "big" and "small" money. Hmmm, like Obama did. By that metric, watch Cruz, and of course Trump is a wildcard, not needing either and currently not playing that game at all.)
Now that's an interesting argument.
The US allows champerty and maintenance already, so it's not an issue in the US.
The US allows champerty and maintenance already, so it's not an issue in the US.
Purchasing lawsuits / judgments is commonplace in bankruptcy. It is considered an asset for the estate. Here's a list of past sales on our site, Inforuptcy.com:
https://www.inforuptcy.com/marketplace?f[0]=im_taxonomy_vid_...
https://www.inforuptcy.com/marketplace?f[0]=im_taxonomy_vid_...
This seems like a broken patch to a broken system. To use the main example from the article, Cat would crush Miller if Miller didn't have access to this method of financing their lawsuit, and Miller's lawsuit looks at least plausible, so them being crushed out of hand is a bad outcome. So, it does somewhat fix the problem of smaller litigants being able to go up against larger defendants without just being automatically crushed out of hand.
However, it does seem that there are some obvious failure states for this new system. If venture litigation becomes the norm, then only litigants who are either extremely large themselves or can attract financing will even have a chance of victory. So, the financiers become the de facto arbiters of the judicial system.
To me, the real problem is that the civil justice system is so expensive as to be out of reach for many/most people, or at least putting a limit on how big a size difference the two parties can have. All told, this isn't that different than someone taking out a mortgage to fund a lawsuit, and that is fairly obviously allowed. The fact that someone might need to take a mortgage or seek outside funding in order to seek justice is the problem, not the mortgage or financing itself.
However, it does seem that there are some obvious failure states for this new system. If venture litigation becomes the norm, then only litigants who are either extremely large themselves or can attract financing will even have a chance of victory. So, the financiers become the de facto arbiters of the judicial system.
To me, the real problem is that the civil justice system is so expensive as to be out of reach for many/most people, or at least putting a limit on how big a size difference the two parties can have. All told, this isn't that different than someone taking out a mortgage to fund a lawsuit, and that is fairly obviously allowed. The fact that someone might need to take a mortgage or seek outside funding in order to seek justice is the problem, not the mortgage or financing itself.
No. No. No. Not unless the court can level the playing field by ordering the recipient to disgorge invested funds if the opposing party can prove need. Otherwise well funded litigants will bury cash strapped kitigants in fees.
This already happens, routinely. Some libertarians play up the advantages of a "loser pays" system in ameliorating that problem, but AFAICT it just raises the stakes, again to the detriment of the party with less tolerance for losses.
Well, yes and no. It makes it less onerous to defend against certain types of lawsuits (patent trolls come to mind). How many times do we hear stories of some "little guy" who is in the right who gets screwed over because s/he was facing years of litigation that would have bankrupted them even if they won the case?
The other major benefit to a loser pays system is that it does raise the stakes - for frivolous lawsuits. Legal action is, in some ways, very cheap in the United States. Making the loser foot the bill is a good way to make corporations and their ilk take a second glance litigation as a tool.
The other major benefit to a loser pays system is that it does raise the stakes - for frivolous lawsuits. Legal action is, in some ways, very cheap in the United States. Making the loser foot the bill is a good way to make corporations and their ilk take a second glance litigation as a tool.
The arguments against litigation funding are not compelling. In particular, funded lawsuits tend to be much higher quality than contingency ones. Funders are investors. They do due diligence on the merits of the cases because they want to get their money back. And their cost structure doesn't really support funding cases where the hoped-for resolution is a hundred grand in "go away" money. If someone is willing to sink a million dollars or more into a case, that's an indication that it's not frivolous.
I think it is extremely unlikely that 'funded lawsuits tend to be much higher quality than contingency ones.' I can imagine them being of slightly higher quality but not much for the simple reason that contingency cases involve attorney's making an investment decision and those attorneys frequently sink millions of dollars into cases and 'want to get their money back.' The only reason one could argue that funded cases may even be of slightly higher quality is that it is harder for the investor to assess the merits of the case than for the lawyers bringing the suit. But even this argument is pretty weak because any such potential investors can hire experts to assess the case.
Are you disagreeing with me or agreeing with me? Lawsuits financed by litigation funders are much higher quality than ones where attorneys are working on contingency. Attorneys working contingency have committed time, the opportunity cost of which may or may not be that high. If they can get away with not investing much time, they might be happy with a small nuisance settlement.
A litigation funder, on the other hand, will commit hundreds of thousands or millions of dollars up front. They can hire experts to assess each case, and won't finance a case if they don't think they have a high probability of a significant recovery. And their cost model is such that it makes no sense for them to finance a case hoping for a nuisance settlement.
A litigation funder, on the other hand, will commit hundreds of thousands or millions of dollars up front. They can hire experts to assess each case, and won't finance a case if they don't think they have a high probability of a significant recovery. And their cost model is such that it makes no sense for them to finance a case hoping for a nuisance settlement.
Let's call this 'crowdsuiting'.
Oh, wait: somebody has
http://crowdsuit.com/
I find it already unethical for lawyers to take a percentage of the awarded damages, a practice which is fortunately illegal in many European countries.
Why do you think that's unethical? Doesn't it give lawyers the incentive to fight for their clients? What if a poor client cannot pay upfront and percentage of winnings is what convinces a lawyer to fight in the first place?
Because it gives lawyers a stronger incentive to escalate conflicts, instead of deescalating them, which is not in the interest of society. Lawyering up is a zero-sum game, so the economy is better off if the money in question stays in a productive sector.
Take a divorce, for example. Do you prefer lawyers to have an incentive to say "calm down, I'll talk to the other lawyer, and we will find a fair deal" or "give me 20% and I'll make that bitch suffer"?
Note that a poor client who cannot pay upfront can still agree to pay after they win, just not a percentage of the awarded sum.
Take a divorce, for example. Do you prefer lawyers to have an incentive to say "calm down, I'll talk to the other lawyer, and we will find a fair deal" or "give me 20% and I'll make that bitch suffer"?
Note that a poor client who cannot pay upfront can still agree to pay after they win, just not a percentage of the awarded sum.
That does not make sense.
Lawyers who are taking contingency cases have no incentive to 'escalate conflicts.' Their only interest is to make their case and reach a settlement.
Ironically, it is in cases where lawyers are paid hourly that they have an interest to 'escalate conflicts' to draw cases out and keep drawing fees.
Lawyers who are taking contingency cases have no incentive to 'escalate conflicts.' Their only interest is to make their case and reach a settlement.
Ironically, it is in cases where lawyers are paid hourly that they have an interest to 'escalate conflicts' to draw cases out and keep drawing fees.
Escalating conflict may be a way of increasing the perceived uncertainty, cost, and risk to the other party, and thus increasing the likelihood and size of a settlement to make the case go away, so there may be an incentive to escalate conflict with contingency. Its probably less than with hourly fees, and more than with flat-rate fees (which ISTR are occasionally offered by some for some things like simple divorces.)
That makes sense.
If the right framework can be agreed for keeping cases free of vested interest and bias, I see benefits in this mechanism.
One possible upside is that David-vs-Goliath cases as described here would be the ones most attractive to investors. The more obvious the injustice, the less risky the investment.
One possible upside is that David-vs-Goliath cases as described here would be the ones most attractive to investors. The more obvious the injustice, the less risky the investment.
This will perpetuate a broken system and widen the economic gap as companies start profiting on the demise of the opposition.
It's one thing when someone invests as a form of aid, however, I see this being gamed for profit.
It's one thing when someone invests as a form of aid, however, I see this being gamed for profit.
The problem is a legal system where the side with money can bury the other. This stuff is just a symptom of that. Stopping one without fixing the other is just a free pass for the powerful.
Interestingly, it seems there is already a crowd funding website for litigation:
https://www.invest4justice.com/
https://www.invest4justice.com/
I think it's perfectly fine to invest in civil lawsuits for a stake in the settlement/awarded money (haven't thought about criminal law but it's probably fine as well). You can invest in insurances which isn't much different from my POV.
For big collective bargaining trials you can already invest in the outcome without the money going towards moving towards the outcome (short/long the company who is bieng sued)
For big collective bargaining trials you can already invest in the outcome without the money going towards moving towards the outcome (short/long the company who is bieng sued)
Isn't that what an insurance company is? Defendants pool their resources to fight off torts, share the judgements against them.
Should lawsuits be open to lobbying and allow corrupt judges to make a lot of money on certain cases?
Does anyone else think that this product could use a more professional video?
https://youtu.be/54_Tb-PiATY
https://youtu.be/54_Tb-PiATY
Wait for it.... he has an idea... and then we'll package them into lawsuit-backed securities!
So, reality is about to catch up with Cory Doctorow (Makers) ?
VC-backed litigation crowd-funding platforms in 3.. 2.. 1..
If I remember correctly, Makers by Cory Doctorow had this as a big plot element
Only if the funds are shared between the two people fighting the lawsuit... In the current market, the entity spending the most money generally wins. This needs to go away first and it can go away if both (or all) entities in a lawsuit have to pool and divide the resources. This should help equalize the ground a little bit.
Champerty is the (largely defunct) rule against funding someone else's lawsuit. I always thought that was a funny word. Champerty. But TIL that it comes from the fact that in "England, litigants could hire ‘champions’ to represent them in ‘trial by battle.’ By the late 13th century, these strongmen were being compared to prostitutes, and their prevalence hastened the movement of dispute resolution to the courtroom. During the Middle Ages, this concept of ‘champerty’ — assisting another person’s lawsuit in exchange for a share of the proceeds — emerged as part of the larger ecclesiastical taboo against usury."