How much do you reckon they spend on lawyers? [Archive]

steve V. johnson

Mar-23-2008, 3:39pm

Interesting that Activision, now flush with new game revenues, filed the suit, one would think pre-emptively.

None of the principals will spend more than they think they can earn, and in fact, I'm sure someone somewhere in a room
at each co. (or at their accountants' offices) has a pretty good figure in mind for just how deeply to go with legal and
negotiation costs before they run into diminishing returns.

My guess is that their target will be about 15% of what they stand to earn from renegotiating their previous licensing agreements.

And, it's probably easier to make $ from taking more from Activision than it is to make it by making and selling more guitars!
And... that's probably true in converse for Activision, that it's easier to stay profitable by not paying Gibson more, than to sell
more games... Certainly the margins are higher.

Funny stuff... giants fighting over crumbs...

stv

MikeEdgerton

Mar-23-2008, 3:47pm

Interesting that Activision, now flush with new game revenues, filed the suit, one would think pre-emptively.
A fact lost on most people. No sense in bashing Activision, no fun in that http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif

Santiago

Mar-23-2008, 4:31pm

It's possible, but I highly doubt Gibson is ahead of Activision in developing relevant gaming technology. This is not about trademark enforcement, Gibson's usual target. This is about developing game technology. The facts will come out in court, but Gibson's got a lot to prove.

JeffD

Mar-23-2008, 9:35pm

How much do you reckon they spend on lawyers?

Much less than they figure they are out if they don't pursue the lawsuit.

Bernie Daniel

Mar-24-2008, 4:57am

stv: Funny stuff... giants fighting over crumbs...

Yes good one. #In a country with an plethora of blood suckers every drop of blood becomes an ocean.

Too bad some of those great legal minds could not have choosen to devote their enorumous brain power to some career that benefits society.

A pox on both of their houses.

Desert Rose

Mar-25-2008, 5:44am

Ill give you some vague numbers just for food for thought. I believe I know the actual figures but no need here to be specific

The Elderly Gibson battle cost each party multi millions in Lawyers fees, The PRS Gibson battle cost each more since it was drug to the Supreme Court

From what I understand both PRS and Elderly had the same representation... and both came out ahead

And you bet I know these guys name http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

Scott

Bertram Henze

Mar-25-2008, 6:14am

I must confess I did not know what Guitar Hero was until I saw it in a TV commercial the other day http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif what utter nonsense. Did Boeing file a lawsuit against the inventor of paper darts? because that's what is going on here.

Besides, I think this whole patent right business is a dangerous attack on freedom in general. Some day they will claim patent rights on life itself - if you eat genetically engineered food, the patent holders will knock on your door and claim possession of your stomach.
I hear people once emigrated to America to escape old Europe's feudalism - well, it doesn't get more feudalistic than this.

Bertram

Stephen Perry

Mar-25-2008, 6:24am

I don't understand the concern here. Both companies appear to have patents. Each appears to think there's a dispute involving these patents. All patent rights do is allow one to negotiate with another for use of the patented aspects of something, and if that doesn't work, then to sue. This kind of thing happens all the time. It's inherent in the IP structure in the US, which is only backed up by our contract laws and our adversarial system. This thread seems to bash folks who are stuck with the system imposed on us, specifically the attorneys and companies.

Sometimes one has to be a hard @ss. One of those use it or lose it things, which it looks like is the cornerstone of one of the party's cases. I suspect letters and conference calls and the like went on for a while, push came to shove, and the thing ends up in court.

I suspect folks here would be surprised at how often little tiffs over IP rights don't end up in court. Copyright and trademark infringement may well be the most common. We even have willful infringers right here on mandolin cafe, folks who without thought infringe others' IP rights. The structure forces the IP owner to be a hard case. Don't enforce trademark and it dies.

Anyway, I see the criticism here as a bit off base considering the notable lack of information on what has gone on behind the scenes. Always easy to second guess things, to call the plays after the game. Court is a 4th quarter play, in my mind. We didn't see the first 3 quarters and certainly have little of the information at hand in the popular press.

MikeEdgerton

Mar-25-2008, 6:32am

There would be no concern here Steve if one of the companies didn't have the name Gibson. This sort of thing happens every day in this country and nobody sees an affront to their personal sensibilities, but add the magical ingrredient and it's front page news and that cannot be denied. Nobody jumped in this (http://www.macworld.com/article/132501/2008/03/zapmedia.html) became news. Why? Nobody to take to task. This really is a non-event in the business world. Activision and Gibson are doing what companies do.

steve V. johnson

Mar-25-2008, 7:10am

I don't really see a patent issue as much as the two are playing very hard ball in renegotiation of an existing licensing
deal.

There was a gaming issue of Wired Magazine recently that had some numbers on sales and revenue of the top game
developing companies. I haven't the specific numbers at hand but there are a lot of places out to the left of the decimal.
It looks to me like Gibson wants more of that and Activision wants to avoid giving it to them.

Bertram's point about genetically engineered foods and patents is prescient. There are folks out there who are definitely
thinking that way, and biotech patents -will- be a very tough issue in times to come.

Tangential Mandolin content:
What if an alliance was made between an instrument company and folks who could engineer trees that would virtually guarantee a steady supply of a particular wood with specific grain and density characteristics, fast growth and fast, even drying...? It's conceivable that the bioengineers might then claim a portion of the instrument sales. Or more...

stv

Stephen Perry

Mar-25-2008, 7:29am

It's a patent infringement suit that the link points to. That makes it a patent issue as far as the lawsuit goes. If that's part of some other game, then so be it. Not the issue at hand.

Bertram Henze

Mar-25-2008, 7:36am

What if an alliance was made between an instrument company and folks who could engineer trees that would virtually guarantee a steady supply of a particular wood with specific grain and density characteristics, fast growth and fast, even drying...? It's conceivable that the bioengineers might then claim a portion of the instrument sales.
Why stop at optimizing the wood? I want a tree that can grow ready scrolls. Nut trees we already have http://www.mandolincafe.net/iB_html/non-cgi/emoticons/biggrin.gif

But seriously: I think, since mandolins (or acoustic instruments, come to that) are not the base of a mass market, we are quite safe in our peaceful little corner. We are not consumers, we are creators.

Bertram

first string

Mar-25-2008, 7:53am

Bertram's point about genetically engineered foods and patents is prescient. There are folks out there who are definitely
thinking that way, and biotech patents -will- be a very tough issue in times to come.
I agree. This isn't the place, so I won't really go into it too deeply, but I will say that when our courts allow companies to patent organisms, things have gotten way out of hand. For most of us it's hard to imagine now, but these things will have very real and negative effects on us in the future. Anyone who is interested should check out the excellent documentary, "The Future of Food."

http://www.thefutureoffood.com/index.htm

I don't know whether we should blame Gibson or not. Certainly some of these law suites seem frivolous, but I don't have all the details. I will say that our IP laws need to be adjusted drastically, and in a fair and equitable society, my intuition tells me that Gibson wouldn't have too many legs to stand on (especially in their claims to the trade dress items, like the banjo peghead shape, or the flowerpot. They didn't enforce their claim to those things for years). But I'd really need to hear more about it. Especially when it comes to this Activision thing. I confess I don't care too much about this latest one, because Guitar Hero always struck me as a fundamentally dumb game. Why not learn to play a real instrument?

MikeEdgerton

Mar-25-2008, 7:54am

It's a patent infringement suit that the link points to. #That makes it a patent issue as far as the lawsuit goes. #If that's part of some other game, then so be it. #Not the issue at hand.
You missed the point Steve. That link points to a totally different suit. The difference between that suit and this one is that it doesn't contain the name Gibson. The only reason this one has incited any fire is because Gibson was involved. You remove the name Gibson and add say Collings or Weber and suddenly the tone of the posts would change.

Keith Erickson

Mar-25-2008, 9:18am

<<Mandolin Café member does not feel that the article was written well enough to explain the details of the lawsuit. #At this point, this Mandolin Café member will refrain from making any comments for or against this lawsuit until a well respected member of the media explains this story in greater detail.>>

Jeff Hildreth

Mar-25-2008, 9:28am

When a Gibson product is purchased, it is the customer's money that is eventually spent for legal fees.

The company makes products .. not money. The sale generates the funds...

MikeEdgerton

Mar-25-2008, 10:52am

When a Gibson product is purchased, it is the customer's money that is eventually spent for legal fees.

The company makes products .. not money. #The sale generates the funds...
When you pay the money to Gibson it's no longer yours, you've exchanged it for a product and now they are free to use their money as they wish. The company manufactures products to make money, they aren't in it for any other reason. Gibson could create a million mandolins but if they didn't sell them to make money everyone in the company would starve. This has nothing to do with art or the greater good, they are a for profit company. If you don't agree with what they spend their money on then you have the ultimate power as a consumer to not buy any more of their products but you really have no claim as to how they should spend their money simply because you bought one of their products.

Jeff Hildreth

Mar-25-2008, 1:28pm

If no one bought a company's product.. they would have no money.

"When you pay the money to Gibson ( actually the dealer pays Gibson) it's no longer yours, you've exchanged it for a product and they are free to use their money as they wish"

I don't believe I made any reference to a comany's right to do whatever they wish with their proceeds.. entirely up to them. And you are correct.

I agree that Gibson in particular often exhibits the trait : " the company manufactures products to make money, they aren't in it for any other reason"

I don't necessarily agree with that for all companies and all circumstances, but still not relative to the issue at hand.

Gibson is doing what Gibson does best.

I have owned perhaps a dozen Gibson products and enjoyed them all, guitars, mandolins and banjos.

Keith Erickson

Mar-25-2008, 1:45pm

I've read and re-read the original article pertaining to the Gibson lawsuit. I still stand by my original assessment that the article in question is poorly written.

However I've come to the conclusion that until this lawsuit is resolved, games like "Mandolin Hero" & "Bluegrass Band" will not be released any time soon http://www.mandolincafe.net/iB_html/non-cgi/emoticons/wow.gif

Stephen Perry

Mar-25-2008, 3:09pm

It's a patent infringement suit that the link points to. That makes it a patent issue as far as the lawsuit goes. If that's part of some other game, then so be it. Not the issue at hand.
You missed the point Steve. That link points to a totally different suit. The difference between that suit and this one is that it doesn't contain the name Gibson. The only reason this one has incited any fire is because Gibson was involved. You remove the name Gibson and add say Collings or Weber and suddenly the tone of the posts would change.
I don't understand. The link at the head of this thread points to an article containing the statements

"Gibson Guitar said on Friday that it filed a patent infringement lawsuit against Viacom Inc's MTV networks, Harmonix and Electronic Arts relating to the wildly popular "Rock Band" video game and Harmonix's previously developed game, "Guitar Hero.""

and

"Activision filed a lawsuit asking the U.S. District Court for Central California to declare Gibson's patent invalid and to bar it from seeking damages."

These suits look like they concern patents to me, although I don't have access to the filings. One side claims infringement, the other claims bad patent.

Perhaps I'm missing something. Perhaps there's pronoun confusion. I was blond before I was bald.

Keith Erickson

Mar-26-2008, 8:15am

Perhaps I'm missing something. #Perhaps there's pronoun confusion.
Steve,

The article has a lot of holes in the story. I don't know if it leads to a pronoun confusion but it most certainly doesn't help the reader.

From the story

Activision licensed the rights to model its video controllers on Gibson guitar models and to use their likenesses in the game.

Activision has said that by waiting three years to raise its claim, Gibson had granted an implied license for any technology.

Maybe Gibson is ticked off about the fact that their guitars likenesses are being used in the game. Who's to know?

It is "implied" in the article but not substantially confirmed.

MikeEdgerton

Mar-26-2008, 9:09am

Gibson licensed their likeness to the game maker.

mandopete

Mar-26-2008, 9:11am

However I've come to the conclusion that until this lawsuit is resolved, games like "Mandolin Hero" & "Bluegrass Band" will not be released any time soon
Bummer, i'z waitin' on Cowbell God!

Snakebeard Jackson

Mar-26-2008, 9:45am

mandopete funny
that was a laugh for me today.

David Newton

Mar-26-2008, 10:11am

I've read some about this, and it seems Gibson had a patent on a game that was like Guitar Hero, with significant differences, but it did not go. Then they licensed some of their shapes and stuff to Guitar Hero, but now want a little more.

What irks is the lawyers. Not all lawyers, of course, we need good lawyers, but lawyers who prey on the "makers". I know the bad lawyers won't kill all the "makers". Goose that lays the golden egg, and all that. But our country used to produce a lot more goods of all kinds. It is sad what we are becoming.

Stephen Perry

Mar-26-2008, 11:31am

Yes, we're becoming a nation of people who see profit as evil, who offer folks less for things than they cost, and insist on both super discount prices and incredible service, all while being incredibly rude. Too many are willing to infringe, break contracts, and otherwise behave badly, only offering excuses when confronted.

TeleMark

Mar-26-2008, 11:34am

What irks is the lawyers. Not all lawyers, of course, we need good lawyers, but lawyers who prey on the "makers". I know the bad lawyers won't kill all the "makers". Goose that lays the golden egg, and all that. But our country used to produce a lot more goods of all kinds. It is sad what we are becoming.
Sad that we are becoming a more technologically-focused economy? Economies develop and move on. A company can make more money selling "bits" than T-shirts. The lawyers have very little to do with this. Other than setting up punitive tarrifs or protectionist legislation (read: more lawyers) manufacturing will move to an environment that reduces costs. Isn't that a good thing?

I work for a company that will have greater than 50,000 employees in another month, makes billions in revenue, and nearly exclusively sells bits. You can be sure that my company has a platoon of lawyers making sure that our rights are protected.

Companies spend money on legal fees. It's a cost of doing business, but licensing of IP can generate billions. I find it funny that people in the practice of creating intangibles of value (music) begrudge companies when they try to enforce their legal rights.

Bill Van Liere

Mar-26-2008, 11:38am

It seems that Henry's legacy will play out different than Ted McCarty's

Laurence Firth

Mar-26-2008, 12:18pm

My understanding of the suit is that Gibson has a patent on a guitar (controller) and system that would allow for assessment of the players ability to follow instructions (notation). Not a game but a tool for learning. But its close enough to the concept of the Guitar Hero / Rock Band Games that their lawyers thought it best to sue. But as I said in an different thread about Rock Band and Guitar Hero - its a small step to take a Gibson guitar (with digital output) and build a guitar hero like system that really assesses the ability of the player to play the notes / chords presented in a notation or some other on-screen presentation. So they may have a good case.

BTW I’m a software engineer working for one of the game companies being sued. 

David Newton

Mar-26-2008, 3:00pm

Yeah, I know lawyers are just trying to help all us good folks. Just don't try to make a profit, or be successful. Stay out of the cross-hairs.

Stephen Perry

Mar-26-2008, 4:47pm

That's a pretty sour viewpoint. I'm an attorney, although I don't practice. I have a problem with a company I'm part of. I don't know how one usually resolves those problems. I have a specialist attorney helping me. This is real help. I pay him. My wife has continuing problems as a result of someone's negligence. I have a specialist attorney helping me through that maze a bit. Either of these could easily end up in court. While I could probably not screw either up too badly, I'm better off hiring an attorney.

When problems with clients or others arise, I would much rather hear from their attorneys than from the complaining party. I love hearing "You'll hear from my attorney." I never do, but it would really make things easier.

When folks can learn to communicate (including listening) clearly and logically, can learn the nuances of the various rules we explicitly or tacitly agree to, and behave in accord with law and decency, then perhaps we can dispense with legal help.

Normally I ignore such barbs. But I'm tired this evening. Get a grip on reality. Given the adversarial system set up in this country, we'd be screwed without skilled attorneys. They work very hard, they don't generally make as much as you think (I do better in the music biz), and they suffer terrible stresses.

As to making a profit and being successful. That takes knowledge of the law and a willingness to enforce rights. That takes attorneys. The best managers and business people I know have constant interaction with their counsels. Constant. I worked for one very careful fellow who ran every piece of paper with any potential import that was to leave the company through his rather senior counsel's hands. At least once a year this fellow caught something that more than made up for his salary.

I'll pretend your slam at a rather distinguished profession taking a fair amount of skill and much work to get into results from ignorance. Rather than slamming the profession here I suggest you actually learn something about what you're writing about.

As to why we don't produce goods - that's not driven by attorneys, just by economics. Too much of the economic picture involves measures equivalent to subsidies on the part of other countries. To address that we need better, more focused, and more effective laws. Guess who writes the most effective and focused laws. Attorneys, of course. Ever write a law? Sit with senators and go over the details? Work with counsel to mesh it into the existing body of law? Negotiate about this and that? Not a place for amateurs on the process or content.

A world without lawyers is a world without law, which is not a very nice world.

Keith Erickson

Mar-26-2008, 5:54pm

That's a pretty sour viewpoint...

...A world without lawyers is a world without law, which is not a very nice world.
Steve,

You are right. #One of our closest friends is an attorney and I have to say that she has assisted me in getting my probate stuff taken care with the utmost care and for that I'm grateful.

However there are those attorneys that aren't so nice. #Off the top of my head, I can think of a particular attorney from North Carolina who makes his living by bringing idiotic lawsuits against companies like Gibson. #And he has made himself filthy rich.

That's why you see warning signs on product packaging such as "Mandolin Strings are not made for human consumption" and "Gasoline for internal combustion engines only."

You're right....Lawyers do have a place in our free society but the US constitution has been hi-jacked by a bunch of ambulance chasers like this pretty boy from North Carolina #http://www.mandolincafe.net/iB_html/non-cgi/emoticons/mad.gif

JoeD

Mar-26-2008, 7:47pm

How much do you reckon they spend on lawyers?

Hopefully, lots and lots. Baby needs a new pair of shoes!

JoeD, Esq. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/tounge.gif

MikeEdgerton

Mar-26-2008, 7:55pm

There are less than pleasant people in every walk of life. They don't have to be attorney's and they don't have to work for Gibson.

allenhopkins

Mar-26-2008, 8:10pm

There are less than pleasant people in every walk of life. They don't have to be attorney's and they don't have to work for Gibson.
Spot on, Mike. #I just get disappointed when some of the "less than pleasant" turn out to be musicians. #I get used to the collegial -- almost familial -- atmosphere, and when the sniping starts, it seems worse.

I assume lawyers have website bulletin boards as well, and talk within their fraternity/sorority about arcane topics that would bore us silly, as our endless interest in plectra and carved scrolls and tablature must seem silly to them.

There is, though, something a bit off-putting in the atmosphere that has arisen, when so many people are led to take unproductive and sometimes borderline ridiculous actions, out of fear of legal jeopardy. #I have found lawyers helpful and supportive -- though not always right -- but evidently there' a pervasive fear out there that leads many of us to "CYA" to an extent not found in the past.

EdSherry

Mar-26-2008, 8:47pm

If I understand the situation correctly (I'm a lawyer by training, but haven't seen anything other than the news articles), there are two different issues here. #

The first is that Gibson contends that the videogames infringe a Gibson patent. #The second is that Gibson has licensed its trademarks (the distinctive Gibson headstock and body shapes, etc.) to the videogame companies, and Activision is "playing hardball" in license renegotiations by threatening to drop the Gibson trademarks from the game. Legally, those are entirely different issues. #

If Gibson's patent is valid and infringed, then it has the right to prevent the videogame companies from using its patent without permission (i.e., paying Gibson for the right to use the patent) -- whether or not Gibson licensed its trademarks to them, and whether or not Activision is using the trademarks. #Obviously, Activision contends that the patent is invalid or not infringed, and that Gibson waited too long to assert its patent. #

Resolving disputes of this sort is what the legal system is for. #You may think that Gibson is spending its money foolishly, but the stakes at issue (the news stories indicate that this is a billion-dollar videogame) are significant. #At (say) a 5% royalty on Activision's sales of the videogame, that's $50 million. #Not exactly chump change. #Why should Activision get away without paying if Gibson really does have a valid and infringed patent that Activision is using?

cooper4205

Mar-26-2008, 9:00pm

what I don't understand is why Gibson would sue years after they went into a licensing agreement with Activision. Did they not know they game infringed on their patent when they were first approached by Activision? Why not call them on it right off the bat, and not after they gave them permission to use likeness all over the game?

David Newton

Mar-27-2008, 8:39am

My sour viewpoint is steeped in experience, living in a very litigious area of the country, and working in a service industry to lawyers.

I in no way am slamming the profession.

I like lawyers, I have lawyer friends, I have called on lawyers to help me, and they have. Never the less, a too-significant percentage of lawyers take advantage of the law with nothing but shark-like self interest, and damn the carnage in their wake. I have seen worthy men's time and much money wasted defending themselves from these attacks. Yes, I know that it took a greedy litigant to initiate the proceeding, but they are encouraged by these lawyers.

Stephen Perry

Mar-27-2008, 10:05am

Yeah, I know lawyers are just trying to help all us good folks. Just don't try to make a profit, or be successful. Stay out of the cross-hairs.
I can read.

That's a slam against the profession, regardless of what self-serving backpedaling you're doing now. A simple, straightforward "My statement was overbroad and I apologize for offending those here who read what I wrote instead of what I intended." Then explain what you mean.

There are bad apples in every field. There are people on this board who infringe IP rights without a thought, and then make excuses when called on it. There are mean and greedy attorneys. That seems to be where we get too many of our politicians. There are mean, greedy, and incompetent physicians. Those facts don't make everyone here an infringer, all attorneys greedy, all physicians incompetent, and all politicians greedy attorneys moving up in the pile.

Having worked in the legal field myself, I can only think of a couple of greedy attorneys I've met out of hundreds. I've had numerous consults with attorneys on matters out of my expertise and have yet to receive a single bill. I've gotten an hours detailed advise, evaluation of documents, and samples of documents and forms emailed to me for the price of a lunch.

I've filed some of those frivolous suits myself. Chasing insurance companies that think a car wasn't worth its bluebook. Or a music store that thinks it isn't responsible for shoddy packing. And so on.

Maybe they're jerks where you live, but not everywhere. Watch that broad wide brush.

red7flag

Mar-27-2008, 10:36am

I would like to see a system where the person losing the suit will have to pay the legal costs, within reason, for the person winning the suit. This would be a great disincentive for bringing frivolous lawsuits. On the negative side, a person with limited funds would have trouble suiing a large corporation due to the possible cost. At times the the person with the deepest pockets wins, not necessarily side with the best case.
I have a side comment. I think if Collings or Weber brought such a lawsuit like what started this thread, the cafe would be all over it. But, knowing those companies, I don't think it would be likely.
Tony

first string

Mar-27-2008, 10:39am

Deep breaths everyone...

MikeEdgerton

Mar-27-2008, 10:44am

I would like to see a system #where the person losing the suit will have to pay the legal costs, within reason, #for the person winning the suit. #This would be a great disincentive for bringing frivolous lawsuits....
There is at least one state in the union that has such a law.

Bertram Henze

Mar-27-2008, 10:54am

I would like to see a system where the person losing the suit will have to pay the legal costs, within reason, for the person winning the suit.
That's how it is in Germany. That does not prevent it from being a bitter and complicated business. A majority of people protect themselves against the costs with insurances.

Someone said without lawyers there is no law. I don't see it that way - lawyers are not needed because laws exist, they are needed because laws are too complicated for ordinary persons to comprehend. If you take away all physicists, does gravity fail? If you take away all lawyers, laws will still exist, they will only be different.

Bertram

red7flag

Mar-27-2008, 10:56am

I was thinking that a similar system to what I described is used in England, but I am not really sure. Maybe some of our Cafe legal beagles could chime in. Mike, what state do you refer to? Also, do you know if the system works effectively in that state? Thanks.
Tony

MikeEdgerton

Mar-27-2008, 11:05am

To my knowledge Alaska. As far as any other state, I don't know. I'm trying to find a reference to the Alaska law.

ApK

Mar-27-2008, 11:16am

Someone said without lawyers there is no law. I don't see it that way - lawyers are not needed because laws exist, they are needed because laws are too complicated for ordinary persons to comprehend. If you take away all physicists, does gravity fail? If you take away all lawyers, laws will still exist, they will only be different.
I disagree. The laws ARE too complicated, and SOME lawyers ARE part of the problem, not the solution, very true, but these two things are also true:
1. MOST of the time when people complain about lawyers, they are complaining about the OTHER GUY'S lawyers! As in "HIS lawyer is a greedy ambulance chaser who is playing the system to make me fork over extra money just because I ran over some kid in my Humvee while talking on my cell phone. But MY lawyer will stand up to him and protect my rights!"

2. In a sophisticated, civilized society of humans, some complex issues will require some complex laws, and even simplest laws will be incomprehensible by the dumbest among us. Those people will still need advocates to protect them from smarter, evil people.

Stephen Perry

Mar-27-2008, 11:54am

I've been involved in situations where the suit involved is portrayed as frivolous. ApK is correct. The other side is frivolous, never my side. And I've never met anyone who intentionally tried to bring a suit without merit. They always think they have merit. Just spend a bit of time interviewing clients! People should understand that if they call the boss an idiot, the boss will get rid of them! That's the kind of thing I used to hear regularly.

The rules of professional responsibility bar an attorney from bringing a frivolous lawsuit. Generally the attorney's malpractice carrier gets excited, too. Civil penalties of non-trivial amounts have been awarded here in Tennessee.

As to what is frivolous, that's a good question! In Tennesse, I'd start with the rules of professional responsibility:

Rule 3.1

MERITORIOUS CLAIMS AND CONTENTIONS

A lawyer shall not bring or defend or continue with the prosecution or defense of a proceeding, or assert or controvert or continue to assert or controvert an issue therein, unless after reasonable inquiry the lawyer has a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

COMMENTS

[1] The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. Both procedural and substantive law establish limits within which an advocate may proceed. However, the law is not always clear and is never static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.

[2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they act reasonably to inform themselves about the facts of their client’s case and the law applicable to the case and then act reasonably in determining that they can make non-frivolous arguments in support of their client’s position. Such an action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a non-frivolous argument on the merits of the action taken or to support the action taken by a non-frivolous argument for an extension, modification, or reversal of existing law.

[3] Although this Rule does not preclude a lawyer for a defendant in a criminal matter from defending the proceeding so as to require that every element of the case be established, the defense lawyer must not file frivolous motions and must give notice to the prosecution if the lawyer decides to abandon an affirmative defense that the lawyer had previously indicated would be presented in the case.

[4] Prior to filing a complaint in a civil matter, a lawyer should act reasonably to promote settlement of the matter in dispute, including consultation with the client about the use of mediation or other alternative means of dispute resolution.

farmerjones

Mar-27-2008, 12:32pm

Someone said without lawyers there is no law. I don't see it that way - lawyers are not needed because laws exist, they are needed because laws are too complicated for ordinary persons to comprehend. If you take away all physicists, does gravity fail? If you take away all lawyers, laws will still exist, they will only be different.
I disagree. #The laws ARE too complicated, and SOME lawyers ARE part of the problem, not the solution, very true, but these two things are also true:
1. #MOST of the time when people complain about lawyers, they are complaining about the OTHER GUY'S lawyers! #As in "HIS lawyer is a greedy ambulance chaser who is playing the system to make me fork over extra money just because I ran over some kid in my Humvee while talking on my cell phone. #But MY lawyer will stand up to him and protect my rights!"

2. #In a sophisticated, civilized society of humans, some complex issues will require some complex laws, and even simplest laws will be incomprehensible by the dumbest among us. #Those people will still need advocates to protect them from smarter, evil people.

Don't you think the problem is the lawyers are making the laws? If the cobblers were making the laws, they'd mandate everybody to have 47 pairs of shoes. Lawyers are doing what comes natural. (not enough bandwidth for all the lawyer jokes)

Stephen Perry

Mar-27-2008, 12:56pm

Last I checked the People made the laws through their representatives in various legislative bodies. Neither courts nor executives can make laws, only the legislature. If there's a problem, then I urge folks to work at the legislative level.

Oh, and wouldn't a truly frivolous lawsuit fail to get past summary judgment? That's how I thought it worked.

bobby bill

Mar-27-2008, 1:16pm

Lawyers are like cops: nobody likes them until they need one.

farmerjones

Mar-27-2008, 1:24pm

According to the Congressional Research Service 170 members of the House and 58 Senators have law degrees.

stating the source-

http://en.allexperts.com/q....ess.htm (http://en.allexperts.com/q/Legislation-Presidential-Congressional-337/lawyers-Congress.htm)

this was easy. the foxes are gaurding the chickens.

Stephen Perry

Mar-27-2008, 1:28pm

A person in a legislature is a legislator, whether they came to the position via farming, flying, or law.

Given the difficulties of drafting laws, one would expect lawyers to be involved. However, most of the people I've met who are actually drafting the laws aren't. They're behind the scenes and just write laws. A weird calling. The one I helped author cured me pretty quick. I hadn't studied law at that point.

DonQuixote

Mar-27-2008, 1:34pm

I was thinking that a similar system to what I described is used in England, but I am not really sure. #Maybe some of our Cafe legal beagles could chime in. #Mike, what state do you refer to? #Also, do you know if the system works effectively in that state? #Thanks.
Tony
I am pretty sure that that is the English system as well.. unless I am grossly misremembering.

There is a big problem with that system, which is that while it might dissuade frivolous lawsuits, it would also dissuade lawsuits that are brought that are borderline but still legitimate. #It would dissaude suits brought to attempt to modify or change the existing law. #It also works against people of limited means who might have a legitimate suit. #This would really ax civil rights lawsuits... #lawsuits by people who can't afford attorney fees and are brought solely on a commission basis (people who aren't liable to their own attorneys if they lose)... etc. #It would, however, dissuade people from frivolous suits... if they don't feel confident they will win. #If they think they have a shot under the system, they may well still go forward.

The question becomes a balance of evils. #Is it worse to clog the system or is it worse to dissuade people from filing legitimate claims? #Also, remember that a lot of lawsuits don't make it past the basic motion stages if they can't reasonably support their claims, so the most ridiculous won't get far into the litigation process (ideally). #It is a system that is unfair to the defendant often; they end up burdened with legal fees because someone felt like going after them....

Kinda a lose-lose situation. #Also it's difficult to compare just this issue with systems with different countries, because the entire court system is very different, so there a ton of factors the go into litigation besides who pays.

olgraypat

Mar-27-2008, 1:51pm

It would appear that the lawyers don't have a majority in the House of Representatives. So if they're controlling the legislation that comes out, it's because the non-lawyers, whose job it is, presumably, to under-cut everything the lawyers propose, aren't getting the job done. On the other hand, how did all those lawyers get to Congress? Did they sneak in, or get appointed by the lawyers' high council? Gee, I guess after you think about it, they were elected. So if there is a problem, it's because "we the people" elected them. Its amazing to me that we fail to grasp that we have a problem in our legislative bodies, its because we elected the folks that make up those bodies.

Frankly, the tone of this "smash the lawyers" thread seems to me to be beneath the dignity of this forum. If the membership is too foolish to recognize that there are good folks and bad folks in every line of work, then I would suggest maybe we need to so some serious reflection. Some of the biggest jerks I've encountered in a while were musicians; right up there with some lawyers I've encountered. On the other hand, if there is an uncivil streak among some of our members that just enjoy picking out a group and bashing it, then maybe we need to rethink our purpose here.

Keith Erickson

Mar-27-2008, 2:00pm

The rules of professional responsibility bar an attorney from bringing a frivolous lawsuit.
Boy do I feel good now.

I was begining to believe all of those stories about lawyers filing global warming lawsuits against the oil companies were actually true http://www.mandolincafe.net/iB_html/non-cgi/emoticons/rock.gif

MikeEdgerton

Mar-27-2008, 2:16pm

We've reached the point where we are beyond the discussion at hand and we are entering politically sensitive ground. We need to stay away from the hot button political issues.

Keith Erickson

Mar-27-2008, 2:26pm

We've reached the point where we are beyond the discussion at hand and we are entering politically sensitive ground. We need to stay away from the hot button political issues.
...but let's continue on with the Gibson bashing instead. Makes total sense http://www.mandolincafe.net/iB_html/non-cgi/emoticons/laugh.gif

The Old Sarge

Mar-27-2008, 2:28pm

I was thinking that a similar system to what I described is used in England, but I am not really sure. #Maybe some of our Cafe legal beagles could chime in. #Mike, what state do you refer to? #Also, do you know if the system works effectively in that state? #Thanks.
Tony
I am pretty sure that that is the English system as well.. unless I am grossly misremembering.

If I remember correctly, and that is problematic at my age, under the British system attorneys (in particular I seem to recall Barristers) may not pursue a claim on a contingency basis. #So the plaintiff must pay up front whether or not he ever collects a penny. #This cuts down on the number of suits but puts the poor person at disadvantage right out of the gate.

The judge in the court where I work recently gave a summary judgement in three cases (related somewhat in that they had the same plaintiff and were from the same set of circumstances) for the defendants. #He further imposed sanctions on the plaintiff (who filed pro se)in a sufficient amount to cover the attorney's fees with further sanctions, in larger amounts, should the plaintiff appeal the summary judgement. #(Believe me, these were frivolous and the pro se was crazy......but he has nothing to levy against so the attorney's will just have judgements against him).

One might think that after forty years in law enforcement I would hold lawyers in derision but that would be wrong. #I respect the majority of them and consider a case with two good lawyers to be entertaining. http://www.mandolincafe.net/iB_html/non-cgi/emoticons/smile.gif