Each according to his ability... not his guilt...

March 10, 2003 3:00 AM

The lawyers for the victims of the Rhode Island nightclub disaster are planning to sue a radio station that broadcast commercials for the concert. Wistow said that while he still needs to nail down the precise nature of Clear Channel's responsibility, he's all but certain to name the company [in the suit].
posted by Pretty_Generic (34 comments total)

Head spins. Mind boggles. The horror of the stupidity of this makes me want to retreat to my bed with my blankie.

Next up, someone will sue every movie company for making movies showing the WTC prominently in skyline shots of NYC, glamorizing the buildings and making people want to work there, leading to their doom.
posted by Dreama at 3:06 AM on March 10, 2003

It doesn't look, on the face of it, as though Clear Channel had any responsibility. Was a radio station's advertising manager supposed to know about the non-flame-retardant foam, when even the building inspectors didn't? How, exactly, was the station's advertising supposed to cause overcrowding?

But juries can be often convinced to make awards based on sympathy to injured people, even if the evidence linking that injury to deep pocketed businesses and their insurance companies is slight. And thus, suits like this happen.

I love the statement by the lawyer that even though he doesn't know what Clear Channel did wrong, he's going to sue them. It's all about the benjamins.

I wonder if the poor reputation Clear Channel has in some quarters may have played a role in this suit, whether the plaintiff's attorneys may think a jury would be more likely to find against them for that reason.
posted by Slithy_Tove at 3:42 AM on March 10, 2003

the defendant with the biggest bank account sometimes has to pony up most, if not all, of the cash -- even if it bore only a small percentage of liability.

I heard the terrorists who flew the planes into the WTC used Microsoft Flight Simulator to practice with.. so since Microsoft have a pretty big bank account, perhaps the WTC survivors should sue them.

Please.
posted by wackybrit at 3:42 AM on March 10, 2003

Slithy_Tove - To add to your first paragraph: were they supposed to guess that the band would use pyrotechnics, against regulations?
posted by Pretty_Generic at 3:44 AM on March 10, 2003

Based on the article the radio station sold air time bought by the club to promote the concert. Lets suppose the radio station had commercials for Turkeys and then found out later the Turkey company was dropping Turkeys around the city from a helicopter as a promotion gag, only to discover to the horror that Turkeys don't fly. Would the radio station be liable for the mistake of its client? There must be precident on the liability of a radio station and its clients. In this case I don't see it but given there is no one else to sue what do you do for compensation. Hopefully there is a strong "victims fund" from both the public and private sector.
posted by stbalbach at 3:59 AM on March 10, 2003

I have one thing to say about this:

DOWN WITH CLEAR CHANNEL!!!!!!!!!!
posted by delmoi at 4:28 AM on March 10, 2003

given there is no one else to sue what do you do for compensation
...uhhh, how about *not* sue anyone? I know, it's a crazy idea, but instead of looking for compensation from someone, anyone, how about doing the right thing?
Yes, it's terrible what happened to these people and their families. And if someone is at fault, they should pay for their mistake. But making society pay for the mistake of an individual just takes away personal responsibility. If you were a small club owner, why would you bother following any regulations or having any insurance if, when something went wrong, the government would be forced to pay instead of you?
posted by GhostintheMachine at 4:34 AM on March 10, 2003

"Deep pockets, m'boy, deep pockets" *takes long, luxurious draw on fine cuban cigar*
posted by troutfishing at 5:16 AM on March 10, 2003

This is a special breed of lawyer. It takes a twisted mind to connect those dots. Similar thinking to the mindset in DC I think.
posted by a3matrix at 5:53 AM on March 10, 2003

Someone should sue the families of the victims for spawning offspring who would listen to Great White, thus enabling the band to get the gig in the first place.
posted by tolkhan at 6:07 AM on March 10, 2003

Carl T. Bogus, a professor at the Roger Williams School of Law in Bristol, R.I. ...

*cough*
posted by UKnowForKids at 6:09 AM on March 10, 2003

"As God is my witness, I thought turkeys could fly!!!"
-- Arthur Carlson, WKRP in Cincinnati
posted by stifford at 7:13 AM on March 10, 2003

WHJY urged listeners to see the show

Tort reformers, don't even bother with this one. It's clear that radio stations have no business encouraging people to attend rock concerts. That kind of reckless behavior should be stopped at all costs. I mean, it's obvious--if no one had known about the show, then no one could have died at it. Case closed.

In other news, I plan to sue MetaFilter. I haven't figured out why yet, but it'll have something to do with this post.
posted by vraxoin at 7:22 AM on March 10, 2003

Two people from my hometown - who lived just about about a mile away from my house - died in this fire. I read their obits in the town paper: both early/mid 30's, 2-3 kids. Heavy Metal lovers. Out for a good time.

Are people in the rest of North America so passionate about "Classic Rock" and Heavy Metal as in NE? Whenever I'm driving north, as soon as I hit the Conneticut border all I can pull in on the radio is 70's and 80's rock. It's time warp-ish, Twilight Zone "dee dee dee dee, dee dee dee dee...." stuff.
posted by troutfishing at 7:29 AM on March 10, 2003

Carl T. Bogus, a professor at the Roger Williams School of Law in Bristol, R.I. ...

*cough*

He's real. Go figure.
posted by gottabefunky at 7:48 AM on March 10, 2003

Mmmmm.... oh God.... a bad lawsuit.... another excuse to demand destruction of the entire legal system in general... Oh yes... Mmmm.... GOD ! YES! TORT REFORM! OH GOD YES YES YES!!!! TORRRRT RE-FORM! UUUUUUUHHHHHHHHHHNNNNGH!

So, was this thread good for you?
posted by XQUZYPHYR at 8:02 AM on March 10, 2003

Mmmmm.... oh God.... a bad lawsuit.... another excuse to demand destruction of the entire legal system in general [...]

[Scans the thread in vain for any reference to destroying the entire legal system] And who, exactly, is doing that?

XQUZYPHYR, you are hallucinating.

GOD ! YES! TORT REFORM! OH GOD YES YES YES!!!! TORRRRT RE-FORM! UUUUUUUHHHHHHHHHHNNNNGH!

Like I said...
posted by Slithy_Tove at 8:50 AM on March 10, 2003

Supporters of tort reform will point to this as a reason why damages need to be capped. What really needs to happen here is simple: the judge in this case should throw out the frivolous claim(s) against Clear Channel.

And don't get me wrong—I don't like them either, but I don't think they should bear responsibility when they didn't have any warning as to what was going to happen at the concert.
posted by oaf at 9:06 AM on March 10, 2003

A radio station could tell everyone to go see something at Madison Square Gardens... but once the seats are full, they don't let anyone else in.

Obviously this club did not do the same thing, and allowed more people in than allowed by the fire code. This was the clubs fault. At the limit of the fire code, everyone else 'encouraged' to go to the concert by the radio station should have been told, "sorry, no can do", or if the club thought it was going to get a huge crowd, partner with another club for this event and closed-circuit the concert to the other club.

Clear Channel is just a rich target, but not liable in any way. As much as I dislike Clear Channel, the facts are clear.
posted by benjh at 9:31 AM on March 10, 2003

Once again, we have the recurrent issue: "someone filed a dumb lawsuit!"

And once again, the answer is the same: unless you can devise a way to infallibly sort out good lawsuits from dumb lawsuits *before they are filed* then there isn't a whole lot we can do to prevent the filing of dumb lawsuits.

What will happen -- and what what will *never* be reported under a sensationalistic headline -- is that the case against CC will be thrown out, either on a motion to dismiss or summary judgment. Judges -- not juries -- decide motions to dismiss and summary judgment.

Put another way: the mere filing of a frivolous lawsuit is not a defect in the legal system. The question is how the system handles the frivolous suit. I don't think you could find any lawyer who would tell you that this suit has any chance at all of making it to a jury.
posted by Mid at 9:55 AM on March 10, 2003

I don't think you could find any lawyer who would tell you that this suit has any chance at all of making it to a jury.

Did you read the article? One of the lawyers involved is president of the R.I. Trial Lawyers Association. This is a prominent member of the bar, not some fly-by-nighter.

[...]unless you can devise a way to infallibly sort out good lawsuits from dumb lawsuits *before they are filed* then there isn't a whole lot we can do to prevent the filing of dumb lawsuits.

'infallibly'? That's a straw man. Nothing in life is infallible. What we can do is create incentives to not to file scattergun lawsuits. The 'English Rule', that the loser has to pay for the winner's expenses, would be a good start. Doing away with contingency fees, so the lawyers don't have a piece of the action, and don't have an incentive to push awards to the skies, would be another.
posted by Slithy_Tove at 10:24 AM on March 10, 2003

I meant any disinterested lawyer -- not, obviously, the plaintiff's attorney.

As to discouraging people from filing suits -- any approach you devise affects valid suits just as it will affect "scattergun" suits. At the margins, some number of people with *valid* lawsuits will be discouraged from filing their suits if you impose higher costs for filing the suit.

That's well and good, but let's be clear that what you are really talking about is lessening access to the courts for *all* plaintiffs, not just bad plaintiffs.

As for doing away for contingency fees -- this is also just imposing higher costs on *all* plaintiffs. Many people with valid lawsuits can't afford non-contingency lawyers. Again, you're closing the courthouse door to people with real cases.
posted by Mid at 11:01 AM on March 10, 2003

Doing away with contingency fees . . .

Isn't this a matter of private contract? What rule would you propose? Lawyers can only charge their clients a fixed fee that they have to establish at the beginning of the case? Seems a bit meddlesome to me. Plus, it would basically make it so only rich people could bring lawsuits.

It's true that Clear Channel doesn't seem liable here (although it's never wise to judge until all the facts are in), but naming them in the lawsuit just isn't a big deal. A good lawyer is going to name everyone possibly connected with the harm in question so they can do discovery and see what's there. Of course, you have to have a plausible belief that there might be liability before naming a plaintiff and you can be fined if the suit is truly frivolous, but one could certainly imagine specific facts that would make CC liable (suppose they HAD specific knowledge that the place was a firetrap and still ran the ad, for example or suppose they kept encouraging people to come down to the concert the night of the concert knowing that the place was already dangeorusly crowded)
posted by boltman at 11:17 AM on March 10, 2003

How about if a case is deemed frivolous, then the filing *attorney* should be required to pay court costs for both parties.

"Loser pays," is often the rallying cry for tort reformers, but that does slide the advantage to the wealthy. The poor won't take the chance. However, I don't think anyone can deny that the system is rife with scruple-free lawyers pushing the system just on the chance they'll hit a jackpot.

And it would definitely cut down on the phenomenon of serial litigation for the purposes of harassment.
posted by umberto at 11:39 AM on March 10, 2003

defining "frivolous" is the tricky part umberto. How do you distinguish between a suit that is frivolous and a suit that is trying to test out a new legal theory? The recent McDonald's lawsuit was decried by many as "frivolous" but the stuff they were alleging was pretty analogous to the successful claims bought against the tobacco companies. Now their allegations may be wrong, of course, but how a court decide that without having a trial and examining the evidence?
posted by boltman at 12:13 PM on March 10, 2003

Well, to address a side issue, I would say that the lawsuits against the tobacco industry are also frivolous, but why bring that hate down on my head?

It would seem to me that if you publicly pick your fat-pocketed target, then start digging around for culpability, as seems to be the case here, there is a disctinct smell of frivolity in the air.

I would also say that the lack of foresight on the part of the firework's manufacturers for making the devices capable of ingition in a crowded area, and the thoughtless neglect of the architechts to design doors that 300 panic-stricken human sparklers could exit simultaneously would leave them ripe for the plucking.

It does seem a pity that defining jurisprudence requires destroying it.
posted by umberto at 3:06 PM on March 10, 2003

but the plaintiffs won the tobacco lawsuits. Are you really proposing that frivolity be defined by some standard other than the chances that the claim will ultimately be successful? If so, I think your real problem is with the law itself (or the jury system) and not the lawyers who are, after all, just doing their jobs. The lawyer quoted in the article is absolutely correct that failing to pursue any claim on behalf of your client that actually has a decent chance of winning is likely to be professional malpractice.
posted by boltman at 4:12 PM on March 10, 2003

I guess maybe I do think the problem is the jury system, bastion of American ideals though it is. I do think, however, that --doing their job or not-- the crush of these type of lawsuits is promulgated by the self-interest of a certain segment of the attorney population and their awareness that a jury of the not-so-well-off when presented with a not-so-well-off plaintiff and pointed at ANY deep pocketed defendent --however ludicrous and tenuous their connection with the case might be-- can be easily swayed to fork over someone else's cash to alleviate the suffering of someone they feel sorry for. I think that we are the only western democracy that provides for juries in civil cases, and it's an expensive distinction.

And yes, I am claiming that 'winnability' (sic) is a poor standard for frivolity. Someone could sue General Motors because their father was killed by a drunk driver and General Motors neglected to take steps to prevent that from happening. I'm surprised it hasn't happened yet.

I'm sorry, winnable or not, that case would be frivolous.
posted by umberto at 11:00 PM on March 10, 2003

Mid: any approach you devise affects valid suits just as it will affect "scattergun" suits. At the margins, some number of people with *valid* lawsuits will be discouraged from filing their suits if you impose higher costs for filing the suit.

I don't understand this reasoning. There are no higher costs for filing a suit under 'loser pays'. If your cause is good, your suit wins, and you recover all your costs. I also don't understand why this is supposed to hurt non-wealthy plaintiffs. It's common for trial lawyers market their services as 'no fee unless we make a recovery for you'. Plaintiffs don't pay as it is. What 'loser pays' would do is discourage lawyers from taking on bad cases, by raising the cost of losing.

Note that is also has the intrinsic advantage of appealing to our sense of justice: why should an innocent person have to pay to defend himself against false accusations? Shouldn't the party who make the false claim, and dragged him through the court system wrongfully, at the very least pay the costs he incurred to defend himself?

How would contingency fees be banned? By making such arrangements illegal. Like in England.

Although we carry on these arguments as if in a vacuum, there is lots of world-wide experience on how legal systems without contingency fees and with the 'English Rule' function. Virtually every other country in the world besides the US (including all of the British Commonwealth countries) uses the 'loser pays' rule. England and most of Australia do not allow contingency fees, and Canada, which allows them, has mostly abolished civil jury trials. In New Zealand, most tort actions don't go to trial at all, but are settled on a no-fault basis.

Are the defenders of the current US system of tort law really prepared to accuse England, Australia, New Zealand of being horribly unjust places, where injured plaintiffs cannot obtain justice, and wealthy individuals and corporations trample the rights of those they injure?

Of course not. These countries' legal systems work fine. No one's rights are trampled.

A nice review of these issues is available from Cato, a libertarian think tank.
posted by Slithy_Tove at 11:37 AM on March 11, 2003

The main point is that our system seems to work pretty ok too. "Horribly unjust places" is overheated rhetoric.

As to the logic you're not understanding, it's pretty simple: potential litigants can't know in advance whether they will win or not. They face a concrete risk of losing, no matter how good their case.

If you now tell the plaintiff that they will bear the defendant's costs if they lose, you have imposed a potential financial cost upon them. (Technically, the chance of losing * the total costs.) In assessing whether or not to file their suit, the plaintiff will now have to take this potential cost into account, whereas, before, it did not.

This will obviously, irrefutably discourage some people from bringing suits. Some number of good claims will be kept out of court as a result.

Saying: "but then don't bring a bad claim!" is no answer. Again, you can't know for sure if you are going to win or not. A not-insignificant number of cases are not cut-and-dried "good or bad."

Essentially, it boils down to whether you think we should err more on the side of keeping some good claims out of court. That's a defensible policy decision. What is dishonest, however, is pretending that you aren't (even slightly) closing the courthouse door.
posted by Mid at 12:22 PM on March 11, 2003

Are the defenders of the current US system of tort law really prepared to accuse England, Australia, New Zealand of being horribly unjust places . . .

All of those places have much stronger regulatory regimes and public benefits in place of strong tort systems. You don't need to sue someone for injuring you when you have free health care and generous medical leave and unemployment benefits.

We have a strong tort system here because we don't like government regulation and expensive public benefit programs. So instead we have this crazy free market system where parties are on their own to seek recompense for their injuries and the state acts merely as neutral aribritrator. Since there is no central planning -- no master agency trying to balance out costs and benefits -- our system inevitably produces more extreme, and occansionally even absurd, results. It's just the price we pay for our libertarian streak.
posted by boltman at 10:33 PM on March 11, 2003

Mid: My point is that nations which do implement the 'English Rule' and limit contingency fees are not 'horribly unjust', and everyone realizes that. So why do tort-reform opponents claim the US legal system would unjust if it implemented the same reforms? They're being used elsewhere, they work fine.

[...]potential litigants can't know in advance whether they will win or not. They face a concrete risk of losing, no matter how good their case.

Are you saying that trial lawyers really have no clue whether the cases they're trying are any good or not? That sounds absurd. They pick and choose cases based on whether they're winnable, and whether they're going to make any money. If they don't have a good idea of the odds of winning a case, they're a pretty poor excuse for a lawyer. Saying 'don't bring a bad claim' is indeed an answer. Medicine is often uncertain, but surgeons still shouldn't operate on people who they think are unlikely to benefit. They won't always be right, but they have to make a judgement.

What I want to discourage is the lawyer who brings 20 lousy claims, knowing that will cost him only a few thousand dollars each, in the hopes that even though 19 are correctly thrown out, in one case he lucks into getting a somnolent judge, a gullible jury, and a multimillion dollar payout. The lawyers in this case we're discussing, involving Clear Channel, sound like that: lousy case, poor risk, but an immense payoff if they luck into a stupid judge and jury.

You're also ignoring the fact that often the plaintiff pays nothing. I have no interest in discouraging plaintiffs. I have every interest in discouraging lawyers.

Closing the courthouse door? I definitely want to close the courthouse door to cases whose viability depends on threatening the defendant with the costs of defending himself. That isn't right, it isn't just, it isn't good policy. For one thing, it encourages companies and their lawyers to file suits they know aren't winnable, just to get a payoff from the defendant, who knows the costs of defending, even if he won, would be larger than the cost of paying the lawyer's Danegeld. We've discussed those a couple of times lately here on MeFi.

boltman: I think you're onto something. However, the tort system is a terrible substitute. The victims who are 'made whole' are selected randomly: most injured people receive nothing at all, some receive a pittance, and a tiny number receive wealth beyond the dreams of avarice. (For example of this bizarre disparity of tort outcomes, see the Bendectin cases.) Injuries that are completely imaginary are rewarded with with tens of millions of dollars in payout (e.g., the breast implant litigation, and much of the ongoing asbestos litigation). In addition, about 60% of the cost of litigation is lawyers' fees (on both sides), and never benefits anyone (except the lawyers).

The legal system does a horrible job of identifying and compensating victims. For example, in medical malpractice, only 2% of patients injured by negligence ever file claims, and 85% of physicians sued are innocent. This is ridiculous. There is no relationship between injury and tort action, the lawyers are getting the vast majority of cases wrong.

A no-fault system like New Zealand's, which compensates victims without going through the expensive and error-prone adversarial process would be far, far better option.
posted by Slithy_Tove at 9:55 AM on March 12, 2003

ST: like in any other area, you have clearly good cases and clearly bad cases, and a whole lot in between. In fact, the cases that end up in court are mainly the "in between" type, because obvious cases settle. If your premise is to deny the fact that most cases are not clear-cut, then that's pretty much the end of the debate. Sure, if all cases were clear-cut, we could rig up a system to sort them out. The trouble is that your premise is wrong. And because cases are typically not clear-cut, it is very difficult to target a rule at only the "bad" cases.
posted by Mid at 2:12 PM on March 12, 2003

Mid: I think we're talking at cross-purposes.

I realize not all cases are clear-cut. A lawyer consulted by an injured person must make a decision whether to file suit or not. The current system rewards him for pursuing highly questionable cases or even cases that are completely nonsensical. Tort reform would reduce the incentives for him to do that.

Sure, if all cases were clear-cut, we could rig up a system to sort them out.

But other countries do have a system to sort them out, clear-cut or not, as I've said. Ways to fix the problem of exploitative lawsuits are well known and have been implemented successfully elsewhere in the world. Moreover, we have an example in the US of the workers comp system, which is no-fault based. It's not perfect, but it functions better, with less friction, and compensates everyone who has been injured, not just a tiny fraction (as the current tort system does).
posted by Slithy_Tove at 5:44 AM on March 13, 2003