RIAA Has to Disclose Attorneys Fees In Foster Case

NewYorkCountryLawyer writes "The RIAA has been ordered to turn over its attorneys' billing records by March 26, 2007, in Capitol v. Foster in Oklahoma. The 4- page decision and order, issued in connection with the determination of the reasonableness of Ms. Foster's attorneys fees, requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that 'a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response' (footnote 11 to City of Riverside v. Rivera)."

Comments

So?

[stratjakt]

Why should I care about some minor maneuver in the legal end-game of a case that's been already decided?

Re:So?

[RingDev]

This is another win for little guys trying to defend themselves. Foster wanted the RIAA to pay her legal fees, they bulked trying to claim that her lawyer inflated his fees. The Judge basically called them to the mat and said that if they are spending [large sums of money] persecuting Foster, then she is entitled to have her expensive lawyer's fees paid. Inversely, if the RIAA was paying a first year law grad to handle the case all on their own, and Foster had hired a $2500/hr dream team, the Judge would likely come down in the opposite way.

-Rick

Re:So?

[UnknowingFool]

Court cases are about details. Most court cases, criminal or civil, do not always end in a Perry Mason moment. Little details can reveal much that becomes important later In this case, the amount of money and work that the RIAA has spent in one case can show much about their modus operandi . If they spend very little money or time on a lawsuit, does that not show that they really don't do their homework when sueing someone? Lawsuits are costly and take forever. If one of their lawyers is suing hundreds of people at once, how can that lawyer really get all the details right. They can't. Mistakes will be made. Other plaintiffs can use this information to show that the RIAA did not do the due diligence before filing (something which we expected but is now proved.) My two cents.

Re:So?

[stratjakt]

This isn't a win, this isn't an anything. Wait until we see what the judge actually awards.

He may decide "aww gee you guys sure spent a lot fighting this, you must have had a strong good faith belief in your claims, therefore Ms Foster isn't entitled to that much".

He may decide "you guys are assholes and I dont like you wasting my time, so bend over, here comes da gavel".

This news by itself means nothing. It's like a sports announcer announcing "and Manning throws the ball... " and then going to commercial. The throw is meaningless, we need to know if it's caught, fumbled, intercepted, or what.

Re:So?

[Seumas]

Little guys shouldn't be allowed to defend themselves. If you can't afford to win, you don't deserve to win!

Re:So?

[Atraxen]

Still haven't gotten over Thunderdome, eh?

Re:So?

[JRubatino]

Can't we get beyond thunderdome?

Re:So?

[Dachannien]

The data will provide some insight into the Mafiaa's litigation strategy, perhaps even indicating just how much challenged-case straw it will take to break this camel's back.

Re:So?

[AK Marc]

The throw is meaningless, we need to know if it's caught, fumbled, intercepted, or what.

Even your analogy misses the point. You can't fumble the throw. The next step can be one of only a few things, an incomplete pass (and we even know where the next play will be from if that happens), a completed pass (with the run or fumble or whatever after), or an interception. It can't be a running play. It can't be a fumble (except after the pass is complete, which is some future step not covered here).

This case has decided that there will be lawyer fees decided for the defendant. The plaintiff claimed the lawyers fees are too high. The judge said "oh, if they are so high, tell me what you spent so I can get an idea of what you think is fair for a side in this case." This presumes several things. First, the intention is to still award fees to the defendant, as originally stated. The claim of the fees being too high is being considered. If the fees the defendant claimed are in line with the actual expenses of the plaintiff, the award will stand. If they are not in line with the plaintiff, the defendant will have to defend the high charges.

As I see it, it is a win. We expect that the plaintiff's fees are high. That means that anything close to the legal fees can be named in the countersuit by all future defendants.

Re:So?

[Tastycat]

The original lawsuit failed, but this is a new action. It's like faking a punt to try to make first down. You've made your decision, you've announced it and now everyone knows and there are people everywhere says "oh no!" and saying "that was perfect!", but all that matters is where the players are on the field. There's no time to react, everyone just needs to be in position.

I'm guessing that the issue about the lawyer's fees was seen as trivial by the RIAA, and they are somewhat unprepared for this action. Regardless of the outcome of this order, I find that most amusing.

Re:So?

[NewYorkCountryLawyer]

Well said.

Re:So?

[NewYorkCountryLawyer]

You are so wrong. The last thing in the world the RIAA wants is for an opponent like Marilyn Barringer-Thomson to know (a) how much they pay their lawyers and (b) what the financial arrangement is with the lawyers. I imagine that they will stipulate to the reasonableness of Ms. Foster's fees now, rather than actually disclose the billing records.

Re:So?

[inviolet]

Witty. Yet you forget that this is slashdot... you should've used a car analogy instead of a sports analogy. Woulda got more +1 insightfuls that way. :)

Re:So?

[Viceroy Potatohead]

Even your analogy misses the point. You can't fumble the throw. This is /. Most people can't fumble a throw, but we can. To paraphrase Sartre: "Sports is other people."

Re:So?

[NewYorkCountryLawyer]

They never saw it as trivial. They just never expected to lose on it. They are seeing this as very very major. They brought in their top lawyer to try to stop the bleeding, but from what I can see he's just taken the situation from bad to worse.

Chalk one big one up for the good guys.

If this was trivial you wouldn't have seen ACLU, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma come in with an amicus curiae brief explaining the importance of the attorneys fee award here.

Re:So?

[Drgnkght]

Not all of us apparently.

Re:So?

[nanoakron]

Why should it make a difference how much her legal defence cost, if she won in the end?

Here in the UK, the winner gets their legal fees reimbursed. And that's all that matters - that you were proven right in a court of law.

Hence the loser is punished for continuing to drive the case forward to court, when there are innumerable ways of settling prior to this time.

Also FYI, we don't have 'deals' here between prosecutors and persecuted to 'plead' for lower crimes in return for lower charges.

Re:So?

[Anonymous Coward]

IANAL, but I disagree with you, to some extent. I believe the winner should be reimbursed lawyers' fees, to compensate for the lost time/money/whatever, but it should also be a reasonable amount. Like another poster said, there's a difference if the losing party is forced to pay the other party's expensive lawyers.

I know this is not the best counterexample, but I don't know any other UK cases :P Take the "McLibel" case. McDonald's sued them for libel (yes, British libel law is another matter) and won a 40k verdict. But it was a 7 year case, and the defendents could not possibly afford to hire attorneys for that long of a time. It would be ridiculous if the court compelled the defendents to pay for McDonald's (probably exorbitant) legal fees.

Re:So?

[geeksdave]

We don't need another hero.

Re:So?

[Anonymous Coward]

Hopefully the Judge won't let them off the hook, but probably will (if/when they do stipulate). In either case, this is a win, since the question has been raised and can be in future cases, too, if they balk again and the defendant fees are similar.

Seems like the RIAA forgot a lawyer's rule: Don't ask, or imply, a question that you don't know the answer to (are her legal fees inflated?)!

IANAL, but I've been an expert witness before...

Re:So?

[Seumas]

Here in the UK, the winner gets their legal fees reimbursed. And that's all that matters - that you were proven right in a court of law. That is absolutely frightening. That means that if I have a legitimate legal beef with a government or commercial entity that spends tens of thousands of dollars per day on an army of powerful lawyers for months on end and the judge or jury eventually rules in their favor that I'm going to be bankrupt and my entire life will be ruined from that point forward.

Likewise, my single lawyer that I could barely afford to keep onboard long enough to lose the case would be an insignificant and irrelevant cost to the government or commercial entity should they lose. Not to mention, their army of expensive lawyers are more likely to beat me in almost all circumstances, since I'm going to be stuck paying for the average joe-blow attorney.

People can't say that money is not relevant to winning a case. Of course it's incredibly relevant - otherwise you wouldn't have state provided attorneys, $100/hr attorneys and $10,000/hr attorneys!

Re:So?

[Quantam]

So, now I'm wondering: if it's found that the amount they were suing for exceeded their own lawyer fees, would that pose a legal problem for future law suits? In other words, is it legal to bring law suits when you know that the suit will be a net loss for you even if you win?

Re:So?

[Quantam]

Whoops. "if it's found that their own lawyer fees exceeded the amount they were suing for"

Re:So?

[ArsenneLupin]

This is /. Most people can't fumble a throw, but we can. To paraphrase Sartre: "Sports is other people." Most people here on Slashdot don't even try (won't even play).

Re:So?

[JackMeyhoff]

You mean their laywer's son isng going to halt his Jeep in a screech at the court houses door, burst in past the security guard, slam open the courtroom double doors, rush up to the judge with a peice of paper with "GOTCHA" written on it? Damn, thanks for spoiling the plot.

Re:So?

[dargaud]

I'm curious to know what is in place in the US courtroom practice in case of very large difference between lawyer powers. I mean if one side has a crack team of twenty 2500$/h lawyers vs a law grad student working pro-bono on the other side, can anything be done to make the difference less obvious (regardless of who wins or looses) ?

Re:So?

[Lactoso]

'stipulate'? Perhaps, did you mean, 'capitulate'?

Re:So?

[Cederic]

I believe it's perfectly legitimate to make a loss pursuing legal action.

One case in the UK a couple of years back, an actor sued a media organisation for libel. He claimed and was awarded 1p damages.

Legal fees on both sides were a little more.

The win in court was the important factor, not the financial reparation.

And as for many divorce cases..

Re:So?

[Ashe Tyrael]

Actually, if you fall under certain categories (jobless, long term sick/disabled, pensioner, low income) you'll still get your fees paid by legal aid, regardless of outcome. Of course, the government aren't happy about this, as it means even the people they don't like can get legal aid.

Re:So?

[Conor Turton]

That is absolutely frightening. That means that if I have a legitimate legal beef with a government or commercial entity that spends tens of thousands of dollars per day on an army of powerful lawyers for months on end and the judge or jury eventually rules in their favor that I'm going to be bankrupt and my entire life will be ruined from that point forward.

Not quite as straightforward as that. The judge will look at the financial standing of both parties. For example, if the winning party was a big multinational company and the losing party was a Joe Average on low wages, the likelihood of costs being awarded would be next to nil as Joe has no ability to pay if they are. What could happen is that a measured percentage of costs may be awarded.

Re:So?

[edward2020]

It is legal to bring such a suit. A 1L example would be a simple tresspass claim where no damage was done to the plantiff's property. If the P wins, then he would be awarded a nominal award - say $1 - and the D would know beyond a doubt that they had tresspassed.

Re:So?

[ezzewezza]

Well, clearly then, the analogy should have been, "And Manning drops back to pass...", because then a whole slew of things could happen: fumble, sack, scramble, end around, pass, interception, ...

Re:So?

[NewYorkCountryLawyer]

:)

Yes I think they will capitulate rather than show Ms. Barringer-Thomson their billing records.

Re:So?

[ronanbear]

In the UK an award of 1p damages would almost certainly lead to the plaintiff having to pay costs. If you go to the high court and you're awarded damages less than the maximum from the next court down then you usually have to pay expenses. Also if the defendant offers to settle and you are awarded less than the offer, you pay costs. It's fair.

This action by the RIAA is about precedent. They've almost certainly paid far, far more in legal fees than they stood to gain. The defendant would have been liable for such costs and the RIAA would have pursued them aggressively. They lost and they're trying to weasel out of paying costs, not because they care about the money (it's a drop in the ocean to them): it's purely punitive for them. Any expense and hassle they can cause will discourage people from exercising their rights to defend themselves. They don't care about losing a million or two on this case as long as it doesn't affect their other cases.

Re:So?

[NewYorkCountryLawyer]

No, it's got nothing to do with that.

What it's about is:
-the judge said the RIAA has to reimburse Ms. Foster for her reasonable attorneys fees
-the RIAA said it wanted to challenge the 'reasonableness' of the fees Ms. Foster's lawyer charged
-the judge says that the amount the RIAA paid its lawyers is relevant to seeing if Ms. Foster's lawyer charged too much

Don't be surprised if the RIAA now abandons its challenge to the 'reasonableness' of Ms. Foster's fees, rather than allow its own financial arrangements to be disclosed.

Re:So?

[NewYorkCountryLawyer]

Boy have you got them pegged. After almost 2 years of litigating with these people day in and day out, I couldn't have expressed it better.

Re:So?

[Cederic]

I just went to check the facts around the case I was thinking of. I was wrong, the award was £50k - but he'd turned down a settlement offer of £50k beforehand and the legal fees bankrupted him.

Ah well. At least he proved his point.

Re:So?

['nother poster]

I forgot the legal term, but the judge can simply refuse to drop the RIAAs persuit of this challenge, and force them to go through with it to its logical conclusion. Basically the judge can say, "you started it, but I'm gonna finish it." I have no idea if this judge is inclined to do that, but I can hope...

Re:So?

['nother poster]

The RIAA knew the answer to that question. They just didn't expect to have to turn over their attorneys records, which are similarly inflated, since they expected either to win, or have the defendant capitulate and take a settlement. The judge didn't play by their rules. The thing is it is the judges court, so its pretty much his rules as long as he isn't breaking any laws. (Not quite, but close enough for laymen like me.)

Re:So?

[NewYorkCountryLawyer]

The judge has already permitted them to drop their case. The only issue left is how much attorneys fees are to be awarded. And the RIAA's continuing dilatory strategy is merely building up the legal fees even more.

Re:So?

['nother poster]

Didn't read my comment, did you. The judge has told the RIAA that they have to supply documentation on their fees to guage whether the defendants fees are resonable. The RIAA may not wish to do that for obvious reasons. They would most likely tell the judge that they withdraw their challenge as to the rerasonableness of the defendants fees. The judge, at that time can either accept this and settle the fees, or the judge can decide that they have had enough of the RIAA and their lawyers and force them to follow through with the disclosure and adjust the fee award as they see fit. "I see that the defendant claimed 1/20th of what the RIAA thought was reasonable for their lawyers as her fees. Please don't be so stingy with your legal defence. I find that the defendants fees be reimbursed at the rate of half of what the plaintif felt was acceptable for its case." Won't happen that way most likely, but we can hope...

Re:So?

[Ajehals]

I am not a lawyer, and this is not legal advice, - and you shouldn't look for legal advice on the internet...

I'm going to be bankrupt and my entire life will be ruined from that point forward.

There are other differences in the UK as far as bankruptcy is concerned. I believe that after a change in the law - the Enterprise Act 2000 (?) - Bankruptcy only lasts about 12 months. I think the law was changed so that enterprising individuals could get back into business after a major failure without much in the way of barriers (Personal opinion is that that may be an excellent way of letting poor business men continue to fleece the public and then screw up their own businesses without penalties, but hey..). Unsurprisingly the result is that bankruptcies are on the increase, and coupled with the amount of debt people in the UK have on a per person basis, mostly for mortgages (avg house price is £137000 after all) I would expect that to increase.

Moreover I think that UK courts take into account personal circumstances when making awards or issuing fines, mostly to ensure that they are payable by the guilty party, they also attempt to set up terms on the payment. In aa criminal case you may find yourself owing £50,000 in fines and having to pay back £50 a week / month / year, depending on your circumstances. In a civil case the awards must be actual, and demonstrable, so they should be a number someone picked for media impact, and again should be within your means or deferred until they are, whilst with regard to costs, the way it works is that the court will make a "Costs Order" against you, but say that it is not to be enforced until it can be shown that you have the money to pay, which may be never.

Also remember that in the UK you have access to public money when fighting your defence if you are not able to pay for it yourself. There are also an array of groups that will assist you in your defence in certain areas (this case would be one of them) where you would be able to get help. The help available is often very, very good, not simply solicitors who can't get other work. Depending on the case, top solicitors are available and willing to fight your case, plus advice from senior barristers (juniors or even QC's) in certain circumstances. In short it 'shouldn't' be all that easy in the UK for a rich corporation to simply brow beat individuals into submission on the basis of cost. Sure court cases will still have an impact on the party having to defend themselves, but if they are innocent they have every means to defend themselves, whether they are wealthy or not.

In practice of course some people would still shy away from court even when innocent of any wrong doing, but generally more through fear of the legal process (or simply getting a legal sounding letter) or because they think that they are guilty of something even if they are not. (think about the trailers you get on DVD'S now - you know the ones that equate making a backup of a DVD to stealing a car, a handbag and then shooting a party of school children... (well almost :) )

Anyway, back to your point, bankruptcy, not nice - but no longer the end of the world, even if it is a a major inconvenience. and on top of that if you are innocent of a crime or an infraction of civil law there is no reason not to fight any allegations, and you shouldn't lose out by having to pay your own costs. If you are guilty of something however (i.e. mass copyright infringement for personal gain) and you lose a case and then have to pay damages and costs, well that's your own fault isn't it.

I should point out that it is the UK tax payer who shoulders the burden of much of what I have described above, but then justice should be available to all, and no one should ever be in the position where they cannot mount a vigorous defence against any allegation, civil or criminal. There are currently efforts to reduce the amount of help that is available (using the fact that terrorism suspects are having their defences and appeals paid by the tax payer as a rallying cry) this effort can only make it easier for the RIAA equivalents of this world to twist the law to their benefit.

Re:So?

[fredklein]

That is absolutely frightening. That means that if I have a legitimate legal beef with a government or commercial entity that spends tens of thousands of dollars per day on an army of powerful lawyers for months on end and the judge or jury eventually rules in their favor that I'm going to be bankrupt and my entire life will be ruined from that point forward.


Simple solution:
The loser pays the winner what they (the loser) paid for legal representation.

If BigCompany spends $100000 on lawyers, while LittleGuy spends $1000, then if LittleGuy wins, he gets $100000. If BigCompany wins, they get $1000.

Re:So?

[NewYorkCountryLawyer]

I read your comment. But I guess I didn't understand it.

Now that I see what you are talking about, no, it can't happen that way. If they stipulate that the fees were reasonable and abandon their requests for 'discovery' on the issue, the judge will not force them to turn over their billing records.

Re:So?

['nother poster]

It can happen that way. It is totally in the judges control whether he allows them to withdraw their request or not. Most likely he won't force it, but he can if he feels like it. He will mostlikely want to get it settled and out of his court as quickly as possible, but if he feels that the RIAA, or their lawyers, are acting in bad faith or are trying to cover something up , he can drag them through the wringer. It's his court, not the defence or prosecutions.

Re:So?

[NewYorkCountryLawyer]

Well I guess you know better than I, so why were you asking it as a question?

Re:So?

[AK Marc]

Well, clearly that would be a worse analogy. This is in reference to a case that has already been decided. You are comparing something that just started to something that has already finished. The case is quibbling about ball placement after the play is over, rather than what might happen sometime in the future with the case. All decisions have been made. The case is dismissed. Attorney fees have been awarded. There is a quibble over the amount of fees, after all substantive decisions of the case are complete.

Re:So?

['nother poster]

I didn't pose any question that I am aware of in this thread.

Re:So?

[NewYorkCountryLawyer]

I stand corrected. You are correct, you did not ask it as a question, you simply made the statement.

For the record, your statement is incorrect. A judge has to operate within certain norms of behavior, and that does not include forcing litigants to engage in pretrial discovery on matters that are no longer in issue.

Re:So?

[Anonymous Custard]

We play!

But remind me... is throwing the triangle or square button?

Re:So?

['nother poster]

Um, it would be posttrial penalty phase, not pretrial discovery. Secondly a judge, no matter what phase, does not have to allow a motion to be withdrawn. Thirdly, I know this because I was tangently involved in a case when a judge did just this type of thing. I will assume then that refusing to allow a motion to be withdrawn is within those "norms of behavior" because I've seen it happen.

so my question

[User 956]

The RIAA has been ordered to turn over its attorneys' billing records

So my first question is, do they get a volume discount?

Re:so my question

[yellowdragon]

Also, how do we know they're not keeping dual sets of accounting books for cases like this?

Re:so my question

[Anonymous Coward]

That would indicate that the RIAA actually thinks ahead when making decisions, evidence seems to point elsewhere...

Re:so my question

[TheGratefulNet]

So my first question is, do they get a volume discount?

yup.

it goes up to eleven.

Re:so my question

[Binestar]

We can't. But purjury is a felony, and I presume that the attorney in question would rather not be brought up on those charges. A false set of books presented as evidence would be purjury.

Re:so my question

[HeLLFiRe1151]

My question is, do they pay royalties on those records, or does that fall under fair use?

Re:so my question

[thousandinone]

Does it matter? I got their records via bit torrent.

Re:so my question

[QuantumPion]

Foster: Remember when we said we'd have to send away to NASA to calculate your attorney's fees?

RIAA: Yeah, we all had a good laugh.

Foster: The results are back. You owe us 70 billion dollars.

RIAA: :O

Foster: Oh wait, that's for the space shuttle. You owe us 14 billion dollars.

Pro bono

[Anonymous Coward]

Bloodhounds that they are, they probably work for a couple of bones.

Transparency necessary for Credibility

[mandelbr0t]

We're just asking the MAFIAA to prove that these lawsuits aren't a legal scam, designed to put money in lawyer's pockets. How can we trust such an organization's motives if they won't tell us how much money their lawyers are making?

Re:Transparency necessary for Credibility

[RingDev]

Because the person who presents the amounts will (hopefully) be a CPA, who would not only be risking contempt and perjury charges, but also losing their professional license.

-Rick

Re:Transparency necessary for Credibility

[Anonymous Coward]

Are you for real?

Re:Transparency necessary for Credibility

[Ansoni-San]

Couldn't the RIAA just promise the lawyer financial support in case of a problem?

Re:Transparency necessary for Credibility

[RingDev]

Sure, the RIAA could pay a CPA to lie, but then they would be guilty of all sorts of things (IANAL, but perjury and impeding and investigation come to mind). It would take a lot of money to pay off both the reporting accountant AND anyone else who knows the truth. It only takes 1 honest person to whistle blow on a cover up.

-Rick

One can only hope for this outcome..

[purpleraison]

Wouldn't it be nice if the Supreme Court actually used RIAA's litigation expenses as the basis to repay their victim in this lawsuit?

Re:One can only hope for this outcome..

[TheRaven64]

One suggestion I've seen for making the legal system fairer is that the loser would pay the winner legal fees equal to their own. If you want to spend $2m litigating against someone, and they defend themselves, then if you win you are out of pocket $2m for legal fees. If you lose, then they get $2m. This encourages litigants to not spend more on legal expenses than the other can afford.

Re:One can only hope for this outcome..

[zCyl]

One suggestion I've seen for making the legal system fairer is that the loser would pay the winner legal fees equal to their own.

That system wouldn't work very well for lawyers who charge no fee unless they win. Then if they lose, the fee is zero, and the defendant receives zero.

Re:One can only hope for this outcome..

[Archangel Michael]

The system I would suggest is quite similar.

X sues Y for Z$

X wins, gets Z$

Y wins, gets Z$ from X + the greater of Attorney Fees(X, Y)

Currently there is no incentive NOT to sue. You sue, you lose, more often than not, you are only out Attorney Fees.

Further, I would remove plaintiffs from collecting "Punitive Damages" as those should go to the State or into a fund to compensate victims of similar crimes/losses, where there is no Plaintiff to be found.

As the current system is empowered, most people view lawsuits like a rigged lottery.

Re:One can only hope for this outcome..

[Petrushka]

-- then only very very very rich people would ever dare to sue anyone. Sometimes people who aren't so well-off have cause to sue big wealthy corporations; under your system they would be absolutely totally screwed for life if they lost. The current system favours the incredibly wealthy; so does the system you propose.

Re:One can only hope for this outcome..

[vishbar]

That would help big business. They could sue citizens for, to them, relatively small amounts--$1,000,000, for instance. If they win, they destroy the person they sue...if they lose, that's only a few million lost, no big deal. When the little guy decides to sue the big corp, however, he's better have a rock-solid case. He'd be forced to pay the attorney fees if he loses--so in addition to the $100,000 he was suing for, he'd also have to pay the $15,000,000 for the super-elite attorney force hired by the big corp.

Re:One can only hope for this outcome..

[denobug]

Suppose the X is the little guy(or all of us suffering from its monopoly), Y is MS.
X(little guy) sues Y(MS) for Z$ (for their misconduct and their damage to general public)

X(little guy) wins, gets Z$ (good for little guy, teach the bad guys a lesson)

Y(MS) wins(b/c their legal team is huge + they have money), gets Z$ from X(general public, government, you and me) + the greater of Attorney Fees(X, Y), in this case, theirs.

Please tell me who lose more in this formula?

Re:One can only hope for this outcome..

[MightyYar]

Agreed, but I do like his idea with the punitive damages. Why should a doctor's mistake be like winning the lottery? You should be compensated fairly for your suffering, plus enough to cover your legal expenses.

Re:One can only hope for this outcome..

[Anonymous Coward]

Congratulations. You've just described the system we already have. Your complaint is only that people receive more money than you think necessary.

Oddly enough, even though you think it is such a great deal for the 'winner', it doesn't sound like you've exactly lined up for your share of the pie. Why is that?

Re:One can only hope for this outcome..

[Anonymous Coward]

Why encourage lawyers to rack up fees? Why not:

Y wins, gets Z$ from X + the lesser of Attorney Fees(X, Y)

This is still better than the current Z$+0, and discourages abuse by some large corp racking up fees just to potentially wipe out some small guy suing them. With Z$+0 the little guy gets screwed, with Z$+greater the little guy gets screwed, so isn't Z$+lesser a reasonable compromise?

Re:One can only hope for this outcome..

[MightyYar]

Some sarcastic anonymous coward needs to do their homework. Punitive damages have nothing to do with being fairly compensated - they are about punishing the defendant. IANAL, but I am married to one (well, an ex-lawyer).

I haven't sued anyone because: a. I haven't been wronged in a significant way that I could not resolve independently, and b. I'm not the type to sue because some ass-hat lawyer calls and tells me that I might have a case. Watch daytime TV sometime and see some of the lawyer ads that come on - they are pretty revolting.

Re:One can only hope for this outcome..

[tomhath]

Taking the case on contingency is most of the problem. Filing the lawsuit costs essentially nothing if you can find a lawyer willing to take the chance of a big payout. A reasonable reimbursement for defense (let the court decide) would be fair to both sides. That and the lawyer should be sued for legal malpractice if the court finds the case has no merit.

Re:One can only hope for this outcome..

[kcbrown]

That's why the way I'd do it is this:

You don't sue for a dollar amount. You sue for a percentage of the target's assets, with a cap at some medium-high percentage (say, 70%).

So if A sues B for 50%, then either:

• A loses, so B collects from A 50% of the value of A's assets, plus attorney's fees, plus (if B is an individual) the amount of income that B would have made for the amount of time that B is required to attend (this last bit prevents someone from losing their shirt just because they have to show up in court), with a maximum grand total of some large percentage (say, 80%) of A's assets.
• A wins, and collects 50% of B's assets.

And in the case of a corporation, the "assets" are calculated based on the sum of the assets of all corporate owners, directly and indirectly. That way a corporation can't, even indirectly, get away with creating a wholly-owned worthless shell corporation whose purpose is to sue. I suppose similar provisions should be made for individual ownership of said shell corporation. The bottom line is that the entities responsible should not be able to hide behind a shell corporation.

The end result is that if you lose, you may pay big, but you don't wind up bankrupt for the rest of your natural life, either, regardless of whether you started it or not. But you *do* have to pay the defense fees if you started it and lose.

Re:One can only hope for this outcome..

[Anonymous Coward]

Further, I would remove plaintiffs from collecting "Punitive Damages" as those should go to the State or into a fund to compensate victims of similar crimes/losses, where there is no Plaintiff to be found.

Fuck that shit -- the plaintiff was harmed, the plaintiff should get the money. And what the hell do you mean about compensating a victim where there is "no Plaintiff to be found" -- if there's a victim, there is a plaintiff.

And don't even think of putting the loot into that rathole they call "the state's general fund".

Re:One can only hope for this outcome..

[Atlantis-Rising]

Punitive damages are not the same as damages to the plaintiff for harm. Punitive damages are to punish the defendant for breaking the law, and shouldn't really go to the plaintiff anyway- the plaintiff had little to do with them.

Re:One can only hope for this outcome..

[vux984]

Wow. I could make billions, billions with a B. Next time my contractor screws up and get into a dispute I won't sue for some measly 5 or 10k. I'll get 5 or 10% of his assets!!

Naturally I'll stop hiring small companies -- only HP, Dell, IBM, and Microsoft from now on!! I want to make that 5% to count!!

I dunno about you, but I think your proposed system has a flaw there. ;)

Re:One can only hope for this outcome..

[Fulcrum of Evil]

Why should a doctor's mistake be like winning the lottery?

What makes you think it's like that now?

Re:One can only hope for this outcome..

[lorenlal]

I like the intention. In a sue happy culture that has developed, to throw some chance of losing your arse would definitely force a suing party to carefully consider the case, and force a law team to do the same.

The thing is, that's already in the system. If you lose, those attorney fees aren't anything to scoff at. if you check the links, you'll see $125-250 an hour for your attorney to think about you, let alone when they're actually spending time in court defending or plantiffing (add that to the Becktionary). So as it stands, you're looking at a standard high risk-high reward investment from the plantiff's side... And high capital means it's easier to take the hit... See RIAA.

Lawyers know this. They've known it since day 2 of law school. You take a case you think you can win (unless you're court appointed). If you can get a lawyer to represent you who isn't listed in HR, then that means you should have a winnable case. If you're defending yourself with company law, then there aren't any *new* costs right? Please correct me if I'm wrong. So, to make action against another, you should have a winnable case. The problem here isn't the costs of attorneys, it's the general feeling of juries and judges that your average citizen shouldn't require any knowledge to survive day to day. We're sue happy, because the people in the system have allowed it to be that way, and there are plenty of folks who will take advantage of any exploitable system.

So - If you bring that formula into the equation... How much does it help the private consumer of law services (defending or offending)? It doesn't. That formula would not really hurt the AAs with their suits against grannies, 10 year olds and grad students.

Still though, I'm glad that people are looking at fixing the system. The intention is great, let's tweak that...

X sues Y for $Z+$F ($F = fees which will be part of the case.)
Y spends $D defending itself
X wins receives $Z.
          Court then compares $D to $F.
          If $D is smaller than $F
                  $F will become $D or ( ($D/$F) * $Z) up to $F.
          If $F is smaller than $D
                  Award $F
Y wins
          use formulas above but switch $F with $D.

In cases where you have in house representation, figure out effective cost by multiplying the salary per day by the number of days.

It's complicated... Sure... But I hope it all comes out to balancing costs of representation. If you have a grad student who wins a multi-million dollar case, then you deserve a bonus.

Re:One can only hope for this outcome..

[Archangel Michael]

Y wins, they deserve to lose their shirts.

Replace X from "Little Guy" to SCO, and Y from MS to IBM and see if you now agree with me.

Re:One can only hope for this outcome..

[MightyYar]

I realize that it isn't for everyone, but there ARE enough people winning large awards to make it hard or impossible for doctors to get insurance in some states. For a high-profile example, John Edwards won a $2.75 million dollar award (the jury awarded $6.5 million but it was reduced on appeal) against a hospital for an infant born with cerebral palsy. He also settled for $1.5 million with the OB. If we forget for a moment the really... interesting tactics he used in the case and just assume that the doctor WAS guilty, why should the parents get $4.25 million dollars? If this isn't like "winning the lottery", then I don't know what is. And yes, I know that the parents probably got about half of the award because the lawyers probably worked on contingency. I think this is another part of the problem when the awards are allowed to be so high.

One problem is that many people have come around to believe that a doctor's mistake is equivalent to gross negligence. Even the best doctors make an occasional mistake, and they should not be forced out of the system because of it.

Re:One can only hope for this outcome..

[zotz]

"Further, I would remove plaintiffs from collecting "Punitive Damages" as those should go to the State or into a fund to compensate victims of similar crimes/losses, where there is no Plaintiff to be found."

You might want to re word that about no Plaintiff, but... Wow! I have finally found another person that says Punitive Damages should not go to the victims but to some other "related" purpose. That makes tow I know about now... Could this be qa groundswell?

"Y wins, gets Z$ from X + the greater of Attorney Fees(X, Y)"

This one has problems. Seems like the rich might love this.

all the best,

drew

http://www.youtube.com/watch?v=vcaf2ThG7q4
UFO seen in skies over Winton!

Re:One can only hope for this outcome..

[Anonymous Coward]

actually it favors people who have been wronged. It would force people to sue only if they had a pretty good reason to do so, which is what the GP was trying to get to.

AC

Re:One can only hope for this outcome..

[bkr1_2k]

So what's fair compensation for losing your leg...or being on dialysis for the rest of your life...or for having your spouse/child die? That's the problem with "fair"--people have vastly different concepts of what is or isn't "fair" compensation.

Re:One can only hope for this outcome..

[MightyYar]

If you lose your leg, you should probably get enough money to cover a lifetime of prosthetics and physical therapy. You should get some money to make up for loss of earnings - if you are a professional soccer player, this would be a lot more than if you are a desk worker. But it's all stuff that can be calculated with cold math. I have no problem with the compensatory damages that are getting paid out now - they have a pretty good system for figuring those out. What I think is an interesting idea is the punitive damages going to a common pool of some kind rather than the plaintiff. That way, the plaintiff would still be compensated fairly and the defendant would still be punished sufficiently.

There are two immediate problems that I can see:

1. Lawyers fees would eat into the plaintiff's payout, giving them less money then they would really need.
2. It will be harder for the poor to get representation since lawyers get paid on contingency.

You could probably work out #1 by either paying "reasonable" lawyer fees out of the punitive damages, or include lawyer fees in the compensatory award. You could probably alleviate #2 by making some of the punitive damages go into some kind of a legal defense fund, where a committee could decide to take on certain worthy cases.

I just think that it's an interesting idea, and it would certainly help to curtail the Edwards-style trial attorney, where certain attorneys are getting rich at the expense of our medical care.

Re:One can only hope for this outcome..

['nother poster]

Well, Edwards was pretty well off to begin with, but...

You want to go figure up what the costs will be to cloth, feed, and care for a severely disabled child when they will need significant medical care and support for the rest of their lives and you can't carry them on your future insurance because they have a significant preexisting medical condition? If you aren't worth several million already you are going to need the large chunk of that 4.2 mil for those things.

Re:One can only hope for this outcome..

[MightyYar]

You would probably need something like $20,000/year for the expected life of the child, plus more to cover supplemental health care to extend whatever coverage they have through their employer and Medicaid. I'm pulling those numbers out of my ass, but remember that a normal child isn't free either, so the extra money would mainly go towards special care.

In this particular case, the doctor should probably not have been implicated. Cerebral palsy has about the same per-birth incidence that it did 60 years ago, despite massive improvements in neo-natal care and birthing techniques. The notion that it results from a difficult birth dates back to the middle of the 19th century. This notion was disputed by Sigmund Freud, and a big study in 1980 seems to reinforce the modern contention that very few cases are due to difficult births. Edwards is an exceptionally good trial lawyer.

His lawsuits have had a bad effect on medicine and quality of care. Neglecting the financial toll, more cesarean sections are performed today as doctors try to avoid similar suits. We need to do something that both protects patients from negligent doctors, and also protects them from good lawyers.

Re:One can only hope for this outcome..

[Firethorn]

The problem with the cases Edwards sued for was that he would carefully select 'sob story' cases, and use the disabled baby* and cost things to make the jury sympathetic to the family, along with 'the doctor has insurance'. Combine that with hazy science and unreasonable demands on OBs for 'competence'. A 100% competent and technologically up to date OBG and delivery team will STILL deliver disabled babies, because the syndrome often isn't their fault.

My problem with this is that it indeed allows the big guy to go hog wild on the defense if somebody sues them.
Y wins, gets Z$ from X + the greater of Attorney Fees(X, Y)

I'd prefer:
Y wins, gets the lesser or average of Attorney Fees(X, Y) at the judge's choice.

*he wouldn't represent if the baby died

Re:One can only hope for this outcome..

['nother poster]

What you fail to realize is that when you can not have the child covered on the parents insurance they have to pay for that medical care somehow. An aquaintance had a baby that was prescribed and given an adult dose of pain medication. I do not remember what it was, but it destroyed the babys liver. She ended up having several surgeries, including a partial lobe transplant. The mothers insurance through her employer, who was also my employer, paid the first 100,000 dollars which covered less than the first 5 months of the childs life. After that they would pay for the rest of the family, untill they reached their 1 Mil family max, but were not required to cover the child. The child had the liver transplant when she was about 9 months old. She will be on imunosuppresants the rest of her life and will likely kidney transplans sometime in her lif do to the damage that they suffered also, but they were still functioning well enough at the time. Below are the costs listed for a liver transplant.

Medical costs. (all costs are from California Pacific Medical Center)

Estimated First-Year Charge: $314,600
Estimated Annual Follow-up Charge: $21,900
    That is per years plus inflation for 60-70 years.

Drug costs.

Neoral or Prograf: Total monthly cost is approximately $1,500
Cellcept: Total monthly cost is approximately $800 (required for approx. first three months only)
Septra: Total monthly cost is approximately $7.50
Prednisone: Total monthly cost is approximately $5.50

There are several other expensive drugs needed if you develop Hep B due to imunosuppression therapy.

Notice that $1500 a month charge for just the one of the drugs.

Wow, That's about $40k a year "out of pocket" for medical and drugs. Boy, after all those costs I bet the people just party every night on that windfall profit.

Re:One can only hope for this outcome..

[MightyYar]

I don't "fail to realize" any of that. I am not opposed to forcing a doctor/hospital to pay for medical errors, or to make them responsible for paying for the child's future health care. Simply total it up and put it in the "compensatory damages" section of the lawsuit. Then, if warranted, punish the doctor/hospital with a punitive award - but stick that into a common fund. The common fund could go towards something noble - perhaps in this case a fund dedicated to treating children with liver disease. Or a defense fund for others who have been injured.

It would be quite simple for a judge to order a doctor/hospital to pay for future medical costs as part of the compensatory damages. Certainly you don't think that the current system is working, do you?

Re:One can only hope for this outcome..

[Fulcrum of Evil]

Medical insurance is rising rapidly, but the average settlement is about a half million dollars. Further, 5% of doctors are responsible for most settlements. It seems that shitcanning doctors that routinely screw up is a much faster way to reduce insurance costs. check the second link - in Nevada, two doctors were responsible for 2/3rds of the awards for one year. Maybe they had a bad year, or maybe they shouldn't be practicing.

Re:One can only hope for this outcome..

['nother poster]

Except the plaintiff was harmed by the defendant. Not the state gov. Not the federal gov. Why would the government deserve shit? Punitive damages are levied to teach the defendant not to cause harm in the same way again. Why the fuck should the government be paid for an individual citizens harm?

Re:One can only hope for this outcome..

[MightyYar]

My wife was a lawyer and now she is in her medical residency. I mention this because I want you to understand both my bias and how much previous discussion I'm likely to have had on this topic :)

First, a problem with your statistics. Some specialists are a lot more likely to be sued than others. Anyone involved with childbirth will get sued, no matter how good they are, because babies die all the time and parents often sue. Anesthesiologists get sued all the time because they sit in on every medical procedure, from the benign to the extremely risky. Every anesthesiologist gets sued, AFAIK. So here you have two specialist groups that get sued very often, and they make up less than 5% of doctors. This skews the statistics very fiercely. Also, that statistic would be less misleading if it were "5% of doctors are responsible for 54% of settlements". Get the subjective "most" out of there, because the other 46% is still a buttload of lawsuits.

In fact, a 1999 study found that the doctors with the best credentials are the ones most likely to get sued. In other words, these lawsuits are having an effect very different from what is intended.

My wife and I feel that doctors do not do enough to attack this problem. One thing that they can do, obviously, is be stronger about stripping licenses from bad doctors. The other thing that they can do is strip licenses from doctors who make a living giving bogus "expert" testimony. As my wife says, "No expert witness, no lawsuit." The problem is that doctors are loathe to self-regulate. They really need to step up and just do it - it would probably end the crisis all by itself.

However, I still find the idea of sending the punitive damages to a separate fund intriguing, and maybe applicable to other types of suits. Even if doctors fix their problems, other industries are no doubt seeing the same poisonous effects from our current tort system.

Re:One can only hope for this outcome..

[Atlantis-Rising]

Because punitive damages don't have anything to do with harm- they have to do with breaking the law. For the same reason that the State (hence Laurence v. Texas, Tennasee v. Gardner, etc, etc, etc) prosecutes criminal charges, the state should take those punitive damages- indeed, it was the law of society that was broken (so the theory goes) and so the crime was a crime against every citizen.

Not to mention, who do you think mainains those wonderful courts the plaintiff and the defendant are suing each other in?

Re:One can only hope for this outcome..

[kcbrown]

Most people who sue do so for the maximum amount they can. But you do have a good point.

The real meat of my proposal is that the maximum amount you should be able to sue for should be some percentage of the assets of the target. If you want to sue for a small amount relative to the assets of the target, feel free. :-)

Re:One can only hope for this outcome..

[nomadic]

However, I still find the idea of sending the punitive damages to a separate fund intriguing, and maybe applicable to other types of suits.

Some states already do that.

Re:One can only hope for this outcome..

[avronius]

Perhaps the punitive award could be spent on releasing the patent on an expensive drug (like the $1500/month required in the instance sited). Helping to make this treatment more affordable when distributed by additional drug companies.

Re:One can only hope for this outcome..

[denobug]

The truth about formula is the fact that it works one way no matter what numbers (in this case, entity) are put into the variables. Yes it works good when it is SCO vs IBM. However the unintended consequence of the argument is that the same needs to apply to another lawsuit. You got to take both into consideration.

Confidentiality Question

[Shadow Wrought]

I assume the records themselves would confidential, but is it acceptable to publish a summary of the hours? Are there rules about the level of detail allowed?

Re:Confidentiality Question

[Flying pig]

One would think that legal expenses in any lawsuit in which there is any public interest at all should be in the public domain. The legal system is partly State funded and as such we the people have an interest in how it operates and how it interacts with external private bodies (lawyers.) This is nothing to do with client confidentiality. If we know the RIAA spent 500 hours with Sue, Grabbit & Runne (Attorneys), we may speculate on why so much time was spent on the case, but we do not actually know that the attorneys were instructed to "pop a cap in that ho's ass".

Re:Confidentiality Question

[Shadow Wrought]

IANAL, but I'm pretty sure that there is a confidential aspect to it. Typically communicaitons between an attorney and their client is privileged, so it is not unreasonable to think that the bills would be too. Since the RIAA is basically a private entity (albeit a trade group) and Foster is very much a private entity, then I don't see how the general public can overcome that privilege to see everything that Foster will. A summary, however, might very well be acceptable. It would also, I think, show how much money was spent on "Experts" and, possibly, how much time was spent "editing" the Expert's submissions.

Re:Confidentiality Question

[MightyYar]

Maybe corporations/trade groups/unions/other entities shouldn't be afforded full attorney-client privileges? I don't really have an opinion one way or the other, but it's an interesting thought.

Re:Confidentiality Question

[Tweekster]

Since legal fees can be awarded it is pretty obvious the bills would not be privledged

Re:Confidentiality Question

[NewYorkCountryLawyer]

It is blackletter law that the bills, invoices, statements, and retainer agreements are not privileged.

This is judicial craziness

[Anonymous Coward]

Look, I'm no fan of RIAA, but this is judicial activism at its best. These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL). Just because you want to hate RIAA doesn't mean you can deny them their legal rights and privileges.

Re:This is judicial craziness

[Anonymous Coward]

You can't make the lawyer fees the topic and then refuse to talk about the lawyer fees.

Re:This is judicial craziness

[terrymr]

You forgot the /sarcasm tag at the end.

If attorney/client privilege was required to go that far then your attorney couldn't speak on your behalf in court.

Re:This is judicial craziness

[Volante3192]

The RIAA's argument that they shouldn't have to pay attorney's fees is based, in part, that the cost of their legal team would have exceeded the amount Foster would have needed to pay them if the RIAA won. ( http://www.ilrweb.com/viewILRPDF.asp?filename=capi tol_foster_070221MotReconsider , page 4)

The judge is now saying "put up or shut up."

Re:This is judicial craziness

[Solandri]

Look, I'm no fan of RIAA, but this is judicial activism at its best. These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL).

So by that reasoning, how much Ms. Foster paid her attorneys is covered by attorney-client confidentiality, and RIAA should just shut up and pay the bill? RIAA decided to make an issue of Ms. Foster's attorney fees being unreasonable. The judge, in a "one person cuts the cake, the other person picks the piece" stroke of wisdom, decided to use RIAA's attorney fees as a measuring stick for what was reasonable.

Re:This is judicial craziness

[Anonymous Coward]

Spoken like someone truly astroturfing for the RIAA.

Re:This is judicial craziness

[MaverickUW]

No, not exactly. She's trying to recover the fees so that way she ends this with only a headache and no money lost or gained. They submitted how much her legal fees were, the RIAA complained and said it was too much, so the judge is saying, "And how much did you spend?"

It's very relevant if her fees were $10,000, the RIAA said it was too much, and then we find out they spent $50,000 suing her.

Re:This is judicial craziness

[vimh42]

"You can't make the lawyer fees the topic and then refuse to talk about the lawyer fees."

The first rule of lawyer fees is you don't talk about lawyer fees.

Re:This is judicial craziness

[Anonymous Coward]

Would be nice if the judge would add in some to cover the attorneys having to take the time to justify their fees and assess an interest cost to the RIAA to allow for net present value of the fees at the time they were originally presented or occurred. Would seem justifiable to penalize a money grubbing set of corporate thieves this way for a propaganda inspired nuisance/harassment lawsuit.

How many such results does it require before a class action suit could be filed against the RIAA? After all the RIAA is going after people in very similar fashion to the communist witch hunt that once occurred in this country. Wonder what might be found in the discovery phase. Question for the lawyers out there: is this possible?

If they are going to use us for propaganda, shouldn't we get paid as well as a lobbyist for our time? Or even better, as well as the lobbyists pays our representatives. /greedy grin

Re:This is judicial craziness

[Anonymous Coward]

So by that reasoning, how much Ms. Foster paid her attorneys is covered by attorney-client confidentiality, and RIAA should just shut up and pay the bill? RIAA decided to make an issue of Ms. Foster's attorney fees being unreasonable. The judge, in a "one person cuts the cake, the other person picks the piece" stroke of wisdom, decided to use RIAA's attorney fees as a measuring stick for what was reasonable.

What's reasonable is what she paid to defend herself whether it be $1 or $1M. The RIAA brought a lawsuit against her and she is entitled to spend whatever amount necessary to defend herself. If they don't like the cost too bad. The RIAA brought the initial action. Therefore they have to be ready to pay whatever the defended had to spend to defend themselves.

Re:This is judicial craziness

[sandberglaw]

The post is only partly correct. Yes, a party normally cannot be compelled to divulge communications with counsel. This is an exception to/variation on that rule. First, no advice is being revealed, although perhaps some trial strategy (ie, an entry like, "research New York law on defenses to malicious prosecution") would be revealed. BUT, the substantive part of the case is over, so the other party gets no tactical advantage from seeing the billing records. Second, when the issue is attorney fees, parties have to produce the records to the court - simple as that. Here, the defendant (prevailing party, entitled to some award of fees) had to produce fee and cost records in order to ask for fee shifting. When plaintiff (losing party, facing the prospect of paying) objected to the reasonableness of defendant's request, the court decided to look at both sides' expenditures to get a sense of scale. No judicial activism (code for "a judge doing something I don't like") here, just a judge following SOP for fee requests.

Disclaimer: I am a lawyer, but I have NO involvement in this case whatsoever.

Re:This is judicial craziness

[iabervon]

The fee arrangement isn't covered by attorney-client privilege. An attorney and a client conducting a business transaction (i.e., paying for the legal work) aren't protected, because it is only legal advice and the information the legal advice is based on that is protected.

Re:This is judicial craziness

[raehl]

What's reasonable is what she paid to defend herself whether it be $1 or $1M.

That's not reasonable at all, and can't be the way the system is allowed to work.

If it were, my defense to a lawsuit, ESPECIALLY if I had a lot of cash to pay lawyers, could very well be:

"I'm going to spend $100 million paying my lawyers to win this case, and for $100 million they will win, and then I am sticking you with the bill."

A fair legal process demands that only REASONABLE fees are recoverable.

And, more generally, the less money given to the sharks, the better off our economy is.

Re:This is judicial craziness

[Anonymous Coward]

What's reasonable is what she paid to defend herself whether it be $1 or $1M.

That's not reasonable at all, and can't be the way the system is allowed to work.

If it were, my defense to a lawsuit, ESPECIALLY if I had a lot of cash to pay lawyers, could very well be:

"I'm going to spend $100 million paying my lawyers to win this case, and for $100 million they will win, and then I am sticking you with the bill."

A fair legal process demands that only REASONABLE fees are recoverable.

And, more generally, the less money given to the sharks, the better off our economy is.

If someone should bring a lawsuit against me then I have the right to defend myself. And if I spend $100M to defend myself then I should be entitled to recover those costs. Period. I shouldn't have to compromise my defense because the person bringing said action may not like how much I spend to defend myself. If they're worried about that then they need to think long and hard about entering into litigation with me.

Re:This is judicial craziness

[Anonymous Coward]

lawyers fees are agreed upon before a lawyer takes a case, i.e. before a plaintiff is a client. at the time that the fees are set, no lawyer/client confidentiality applies.

Re:This is judicial craziness

[dlim]

In its Order, at 5, the Court suggested that, to sustain a finding of contributory infringement, plaintiffs were required to show that defendant had substantially participated in the underlying infringements and that defendant had actual knowledge of those infringements. See Order, at 4. These assumptions as to the applicable law, on which the Court appears to have relied heavily in making an award of fees, are incorrect. Is this true? So if I use the wi-fi at the Starbucks to download mp3s, are they guilty of "contributory infringement"? Wouldn't every company that releases a P2P file sharing application be guilty or (given the ubiquity of CD/DVD burners) Blockbuster, Netflix, and every library that loans CDs DVDs? This argument from the RIAA sounds like a pretty desperate claim to me, but then again... IANAL.

Re:This is judicial craziness

[Michael Woodhams]

Will the RIAA's costs (or even the size of the defendent's eventual payout) become public?

Re:This is judicial craziness

[NewYorkCountryLawyer]

I believe that actually will happen, because the judge has specifically provided that Ms. Foster can supplement her fee application after the RIAA is done with its fake 'discovery' on 'reasonableness', and denied the RIAA's application to change that provision.

Re:This is judicial craziness

[Anonymous Coward]

IANAL, but it sounds like they are trying to say that they don't owe attorney's fees because they attempted to drop the case when the defendant wouldn't settle.

Of course the several of the proposed settlements refused to acknowledge the defendant's innocence. The RIAA claims the assignment of blame is moot since by dropping the case no damages are being sought. The defendant continued to push back and the RIAA is claiming they shouldn't have to pay for the excessive fees this assignment of blame and eventual court battle cost. The net effect of the arguing over the settlement is that it ran up the potential damages due to the defendant without effectively changing the outcome.

---

In my opinion, the RIAA does have a point. It sounds like they attempted to bully someone but backed down before anyone was hurt so any damages after they backed down are self inflicted. Of course, the fact that they bullied the person and even in backing down they wouldn't admit that they were bullies seems to give the defendant just cause to push back.

Re:This is judicial craziness

[Anonymous Coward]

this is judicial activism at its best.

Huh? Show me where the judge countermanded legislative action here on bases other than constitutionality? The judge is acting completely within the established scope of the court in establishing truthfulness of plaintiff's claim that fees claimed by the defendant are too high.

this order is going to get slapped down on appeal faster than you can say denied

O RLY? There is precedent... linked to in TFS, FFS.

(IAAL)

Double O RLY? Because you have a unique understanding of lawyer-client privilege. Did you pass the bar, and if so, what state(s)? And how can I make sure you're part of opposing counsel next time I'm involved in litigation?

Just because you want to hate RIAA doesn't mean you can deny them their legal rights and privileges.

Just because you have an unclear understanding of the law (especially if you are, indeed, a lawyer as you claim!) doesn't mean you can ascribe to the RIAA rights and privileges that don't apply.

Re:This is judicial craziness

[NewYorkCountryLawyer]

Definitely the size of the payout will be public. The details probably will too, since the judge's decision will probably go into great detail.

Re:This is judicial craziness

[Viceroy Potatohead]

I can see it now:

My Former Attorney: You're honour, the defendant hired me in case X, and refuses to pay the $30,000 owed to me.
Me: You're honour, the plaintiff just violated my right to attorney-client confidentiality by disclosing this amount. I demand the case be thrown out and the plaintiff disbarred.

Re:This is judicial craziness

[Anonymous Coward]

[Pedant]
Congratulations on being one of the rare few, to use YOU'RE when actually YOUR is appropriate.
[/Pedant]

You are Honour indeed. Your the lucky winner of a free ticket back to grammar school.
                                              ^^^^ - Yes it was deliberate.

Re:This is judicial craziness

[Fulcrum of Evil]

These records are clearly covered by attorney-client confidentiality and this order is going to get slapped down on appeal faster than you can say denied (IAAL).

Yet again, this is proof that when someone says clearly, they're trying to snow you. Here's my narrow refutation - care to provide something of equal or greater value?

Re:This is judicial craziness

[NewYorkCountryLawyer]

I suspect this AC is an RIAA troll.

1. Whenever someone starts out "I'm no fan of RIAA, but......" that's a dead giveaway.

2. Any one with any legal knowledge knows that (a) attorneys' bills, statements, time records, and expense records are NOT privileged (b) the order is not an appealable order and (c) if it were appealable there is no basis for reversing it.

3. What rights and privileges is he/she/it talking about that were denied? The RIAA was a year in default in responding to the discovery notices. After the motion was made, it submitted its papers 2 days late, the judge accepted them anyway and read them carefully, and knocked down each frivolous argument the RIAA was making.

4. Ignore this troll.

Re:This is judicial craziness

[NewYorkCountryLawyer]

I'm pretty sure that was an RIAA troll.

Re:This is judicial craziness

[Fulcrum of Evil]

Well, he did spout some nonsense and claim to be a lawyer. I'm just saddened that I repsonded to an AC. Guess I should update my prefs.

Re:This is judicial craziness

[NewYorkCountryLawyer]

It's easy to get sucked in by these trolls; they're professionals.

Re:This is judicial craziness

[r3m0t]

Hello. This is the RIAA.

We have found you have shared 350 music files which are copyrighted by the RIAA, its members, or its members' musicians. Our list is attached.

If you don't pay us $3.5k within 20 days, we will sue you for digital copyright infringement.

The *minimum* fee for copyright infringement is $750 per copyrighted work. This comes to $262,500. [Of that, about $245 is compensatory to the RIAA. The wholesale price of a music file is estimated at $0.70. The rest is "punitive" and is also paid to the RIAA.] If you lose in court, you will /have/ to pay that settlement - the judge cannot reduce the damages.

If you win, you get back your own fees, but you don't get any compensation for your trouble. To get compensation, you have to file a countersuit.

You can call us on this toll-free number.

Thank you,
The RIAA.

Does this seem fair to you, Anonymous Coward? (Woah, I'm replying to an AC!) How fair would it be if they added this to their letter? It's suggested by your brave new legal system!

PS We have already spent $1k in the discovery process, $2k in sending this letter to you, and we typically spend $50k to file suit and all the usual successive motions. An interview of an expert witness costs us $2k, and other motions may cost us other amounts. If you lose the case, you will not only pay $0.265m, you will also pay our legal fees. Our legal fees may change at any time without notice to you. If you lose, the court will send you our bill, and you will have to pay up, whatever it is.

PS2 We have previously spent as much as $2bn defending ourselves from a single countersuit. If you lose your countersuit, you will be bankrupt.

Re:This is judicial craziness

[A Name Similar to Di]

It's easy to get sucked in by these trolls; they're professionals.

Could be why he's upset and posting. He's disgruntled that "Time Spent Trolling /." is about to appear on the expense sheet released by the RIAA. I think that would really make my day.

Re:This is judicial craziness

[NewYorkCountryLawyer]

:)

That would be funny.

Actually though I don't think they have the lawyers doing it.

Probably use some even more cut rate characters.

Re:This is judicial craziness

[bkr1_2k]

Attorney fees aren't privileged, as far as I know. Especially when they are up for payment in a case such as this.

Re:This is judicial craziness

[Nom du Keyboard]

Disclaimer: I am a lawyer, but I have NO involvement in this case whatsoever.

Glad to know that other lawyers are paying attention to this issue -- and on Slashdot, of all places.

Hope

[Nom du Keyboard]

I hope this hurts them (the RIAA) in a place where they didn't want to be hurt. And that it somehow helps out in other trials as well. It least we might find out just how much effort they're willing to put into a case like this.

Now if you could only get a hold of the procedures Media Sentry is trying so desperately to keep secret.

Deal

[HomelessInLaJolla]

The crowd loves it.

ATTN: SWITCHEURS!

[Anonymous Coward]

If you don't know what Cmd-Shift-1 and Cmd-Shift-2 are for, GTFO.
If you think Firefox is a decent Mac application, GTFO.
If you're still looking for the "maximize" button, GTFO.
If you don't know Clarus from Carl Sagan, GTFO.

Bandwagon jumpers are not welcome among real Mac users. Keep your filthy PC fingers to yourself.

Re:ATTN: SWITCHEURS!

[wish bot]

This is a new tactic developed by paid Microsoft shills. I wonder if it will be as successful as previous attempts. Not.

hmm

[mastershake_phd]

I bet their attorneys get $500 hour at least.

Re:hmm

[j00r0m4nc3r]

Actually I think they get paid in Keith Urban merchandise

Re:hmm

[Anonymous Coward]

I'm sure they already have the mp3s of Keith, what would they need CDs as payment for?

Re:hmm

[NewYorkCountryLawyer]

I doubt it. My guess is that the lawyers they're using are 'low bidders'.

Could be horrible PR for the RIAA

[codemachine]

It'll be interesting to see how much the RIAA is willing to spend on a single copyright infringement lawsuit. If they are putting huge resources into suing individual customers, it will look very bad on them.

Well, worse than they already look I guess. The public already sees these as David vs Goliath lawsuits. But now we'll be able to put a number on how big and bad Goliath really is.

Re:Could be horrible PR for the RIAA

[magicchex]

Or if it's a very small amount per lawsuit, then it will show that they're not really researching enough per lawsuit to actually have a legitimate claim. This seems to be lose-lose for them, unless they've spent some "golden" number in between the two extremes (but what this number is will vary wildly in the eyes of different observers).

Re:Could be horrible PR for the RIAA

[Anonymous Coward]

If they are putting huge resources into suing individual customers, it will look very bad on them.

It won't help at all -- they'll just contend that $2M is cheap insurance if they save an alleged $10M in prevented "piracy".

Many years back, AAA auto insurance decided to make both sides go through depositions and the whole nine yards, just to prove to everyone they weren't an easy touch who would simply pay off any claim under, say, $5000. It may have cost them well over $5000 each on a few claims just to make their point and let the word get around.

Re:Could be horrible PR for the RIAA

[Anonymous Coward]

I was always under the impression that the RIAA went around suing people as a new source of revenue. That, or they hoped it would act as a deterrent to filesharing users. It's most likely a combination of the two. Anyway, if they did want to turn legal action into their new money making scheme (those records ain't sellin' like they used to), why would the RIAA spend any more money than they absolutely need to? They've probably found the "sweet spot" by now. But apparently their sweet spot isn't quite high enough since they're paying for sloppy lawyers who end up making things worse.

Re:Could be horrible PR for the RIAA

[vidarh]

There's another downside to it for them: If the amounts are outrageous, and they still offer to settle for reasonably small amounts and/or any judgements in their favor does not cover their costs, it means the risk of illegal copying will be seen as low. They simply won't be prepared to or able to suffer the losses of large numbers of lawsuits if they lose large amounts of money on each lawsuit.

So it may turn out to dramatically reduce the deterrent effect of their threats to sue.

Question for the lawyers...

[msauve]

Is the RIAA now obligated to turn over this information (and presumably make it part of the public record), or do they have the option to refuse disclosure and simply pay the opposing legal bills without contesting the amount any further?

Re:Question for the lawyers...

[Overzeetop]

Naturally, ianal, but my guess is they can probably avoid disclosure if they scratch a check to Foster's lawyers. From my limited experience in litigation (I offer expert witness testimony in my field of expertise), usually it's fair game to cut and run when things turn against you. At this point, Capitol's best move probably is to just call butterfingers and pay up. No matter how they play this, they come out looking like fools. Their billings are either too large, in which case Foster gets her fees, or too small, and everybody knows they're running lean in these cases. There is no middle ground, by the way. It's either too much or too little. Finally, they still lose if they pay up without disclosure because the perception is that they are hiding one of the two aforementioned cases. The only advantage to them is that there's no telling which it is, which will keep up the guessing game for future defendants.

Re:Question for the lawyers...

[sweaterface]

The parties to a civil litigation are almost always free to compromise and settle their claims, including disputes about attorney fees. Once a court approves a compromise settlement, its role in the matter is terminated, and orders of production are rescinded as a consequence of the court's loss of jurisdiction.

Re:Question for the lawyers...

[Myopic]

I don't mean to ask a stupid question, but I will anyway. Why will the amount necessarily seem too large or too small? Why isn't there a good reasonable middle number?

(Also, what is your field?)

Re:Question for the lawyers...

[Michael Woodhams]

Look at how much stuff in the SCO case is 'under seal' and we don't get to see it. I strongly suspect that this information will not become public. (But IANAL.)

Re:Question for the lawyers...

[Overzeetop]

Actually, there are multiple ranges here: Those in industry, those for lawyers on the various sides, and the general public. Their ranges will all overlap, so that what may be middle ground to the industry group, may be high to the general public.

I suppose there's a small window of "about right" where the fees match the defense within about 10-15%, but that chance is pretty small, imho, without suspecting that they cooked the books. Actually, to most consumers, the fees will always be mind boggling. It's amazing how fast the legal fees on the simplest of cases can just destroy either/both sides. I happen to be a structural engineer, and if there is a dispute less than about $20k, it's usually not even worth filing. I'm not privy to all of the costs, but hours add up quickly, and lawyer hours are darned expensive. I'm usually the cheapest guy in the room, and it still costs a grand, minimum, if I'm going to be deposed, double that if I end up in the courtroom, too, and more than double again even if there's a simple onsite observation. Remember - these folks are usually fighting over $50k-$500k structures, and my fees alone could run 5-10% of the dollars in play on a small job. And, again, I'm the cheap one.

Re:Question for the lawyers...

[jyoull]

I didn't write the comment, but it's probably significant that they've already established that $4,000 is "enough" to settle the cases and to recover whatever was "lost" to the music bandits.

So, they are rational actors if they spend up to $4,000, and no more, to bring each complaint. But nobody wins all the time. If they expect to win, say 3 cases out of 4, then they can rationally drop only up to $3,000 per case, but no more.

The problem is, you can't get much lawyerin', research or expert assistance for $4,000... even less for $3,000.

So if they're spending a rational amount, then they aren't proceeding to court with very good data (a single, simple letter from an ordinary neighborhood attorney can cost $200 to $400).

And if they're spending lots more than $4,000, that's bad too. Nobody with clean hands and honest motives spends $40,000 to recover $4,000.

Civil courts can't do much more than award cash to fix boo-boo's. Considering that, the settlement amounts, and the cost of attorney-time, there's a strong suggestion that the RIAA has some unspoken motive and is simply using the court to advance it. That sort of thing doesn't look good at all, and IMO tends to catch the attention and ire of courts.

Re:Question for the lawyers...

[NewYorkCountryLawyer]

You're 100% on target. If they stipulate to the reasonableness of Ms. Foster's fees, then the issue becomes moot. Which is what I'm betting they will do, rather than let their adversary know the financial details of the relationship with the attack dogs... I mean attorneys.

Re:Question for the lawyers...

[NewYorkCountryLawyer]

You are probably correct that that is what they will do... cut the check and shut up.

Re:Question for the lawyers...

[Myopic]

Well yeah I figure the "motive" is that by suing a small number of people, other people won't break the law (I use that phrase loosely), thus improving the situation of the content industry. That seems like a reasonably "honest motive". Is that irrational, from a legal perspective? I mean, is there a rule that you can't sue if the individual case isn't financially lucrative?

Re:Question for the lawyers...

[Sique]

As someone who lives in a legislation system where legal fees are always open (because they will become part of the sums awarded in civil cases), I am very used to know how much a certain case has cost. The Bar Association even hands out a list how much certain legal services have to cost, and you can sue an attorney if he sends you a fee statement that differs from the Bar Association's rules.

Re:Question for the lawyers...

[portnoy]

Ah, but you're forgetting a crucial data point -- that the vast majorities of suits that the RIAA brings are settled quickly, without the defendant hiring a lawyer. So, the RIAA can keep raking in that dough.

But that only continues to work as long as they show that they're willing to take the matters to court, even if they get reamed on legal fees. If they back down because it's not worth it, the RIAA letters lose their teeth. So, they are being rational actors to spend $40,000 to recover $4,000 -- provided that they're bringing less than a tenth of the cases to court.

Re:Question for the lawyers...

[Nom du Keyboard]

If they stipulate to the reasonableness of Ms. Foster's fees, then the issue becomes moot.

If they situplate to the reasonableness of Mr. Foster's fees, does that make it reasonable to claim that amount of fees in other cases? After all, does this become a benchmark amount of what it takes to defend against an RIAA suit?

Re:Question for the lawyers...

[NewYorkCountryLawyer]

No, questions of reasonableness of fees have to be determined on a case-by-case basis.

There might be certain general principles that would come of it that would be portable: e.g., if you are going to sue someone for copyright infringement when you have strong reason to believe that they did not personally commit copyright infringement, you are going to pay through the nose when the day of reckoning comes.... or when the sole basis for pursuing a case against someone is that they happened to pay for an internet access account, you are going to be liable for her attorneys fees.

Re:Question for the lawyers...

[Anonymous Coward]

"Nobody with clean hands and honest motives spends $40,000 to recover $4,000."

You obviously don't deal with doctors and Health Insurance Companies. I have a doctor who, for the last 18 months has been sending me bills and pursuing collections over a misunderstanding about which insurance groups within my insurance company to bill. The amount they're trying to collect... $80! They've spent way more than $80 trying to collect after you add up all the time I've spent on the phone with them, all the letters, the lein with the Franchise Tax Board they're trying to put through... All because their billing system is f-ed up. Try to explain that to them and they think you're some kind of criminal though...

Plenty of people will spend $40k to collect $4k... they're called idiots... there's lots of them.

Re:Question for the lawyers...

[BlueTrin]

I am surprised that the amount paid to the attorneys is not ALWAYS public ...

[OT] ATTN: INTEL MAC USERS

[SirTalon42]

If you don't know that Intel Macs are PCs, STFU.
If you claim your Intel Mac is better than a PC, STFU.
If you claim you're superior to PC users, please contact your local firing squad, then STFU.

Bandwagon jumpers are not welcome among real PC users. Keep your filthy "PowerPC" fingers to yourselves.

Crrrection

[geekoid]

As the current system is empowered, ignorant people view lawsuits like a rigged lottery.

All Fixed.

Either way it sets a precedent...

[Joce640k]

[i]do they have the option to refuse disclosure and simply pay the opposing legal bills without contesting the amount any further?[/i]

Doesn't really matter. It's a win-win announcement for Joe Public.

If they refuse to disclose then future defendants will be more likely to hire expensive defense lawyers knowing that they'll get the fees back.

If they disclose, future defendants have a spending target to aim at, and you just *know* RIAA lawyers are going to be friends/family of the RIAA and therefore really expensive (they have to justify stealing those artists royalty fees somehow!)

So how much did it cost

[pair-a-noyd]

to do Vince?

Tax money funds courts

[athloi]

I wonder how many millions a year of litigation the RIAA has passed on to the taxpayer, all for an industry that doesn't do much for most of us (an album is a smash when it sells a million copies, but there's 300 million or so of us).

Fight Law with Law

[SRA8]

Because people must realize now that the Legal system is a rigged game highly favouring those with money for expensive lawyers. The way to fight RIAA's abuse of the legal system is with Law, not by rantings on tech boards (preaching to the choir.)

Re:Fight Law with Law

[NewYorkCountryLawyer]

I have to disagree with you.

Before the law changes there has to be widespread knowledge and outrage.

OT: Your sig

[sconeu]

V .. v .. V - Vera Violet Vinn is very, Very VERY awful on her violin.

Re:OT: Your sig

[MightyYar]

Finally someone else with kids!

Tell the truth, did you write that from memory?

Re:OT: Your sig

[sconeu]

Yep.

Big Y, Little Y, a Yawning Yellow Yak. Young Yolanda Yorgenson is Yelling on his back.

PURjury?

[User 956]

A false set of books presented as evidence would be purjury.

Is purjury like when your guilt is decided by a swarm of cats?

Re:PURjury?

[StikyPad]

No, that's furjury. Not to be confused with furgery, which is an illegal copycat.

Sports Analogies?

[Anonymous Coward]

... and I thought car analogies were bad.

Re:Sports Analogies?

[Fordiman]

Meh. The problem is that Slashdotters by and large don't get football analogies, for the obvious reasons.

It doesn't help that it's not really applicable. This is closer to a bounds check (programming) than an instantiated pass (football).

Re:Sports Analogies?

[norminator]

Meh. The problem is that Slashdotters by and large don't get football analogies, for the obvious reasons.

This is closer to a bounds check (programming) than an instantiated pass (football).

Aaaaahhhhh, I get it now. But wait, an instirantiamated what?

Re:Sports Analogies?

[Fordiman]

Instantiated (but unterminated). As in: the pass was thrown, but not caught.

Are legal fees regulated in the UK?

[Lonewolf666]

While IANAL, I know that they are in Germany (which has a loser pays system too). There is an ordinance that determines how much a lawyer can bill you, depending on amount of money at stake, level of jurisdiction etc. And even if you pay him more under the table, the amount you get awarded from the court after winning might not exceed the official numbers.

There are a few booby traps in the system, but it still makes things a lot more calculable than a system where you might have to pay the whole bill for the opposition's $10.000/hour lawyer.

Fee Determination?

[Broofa]

This is really interesting. I'm surprised there hasn't been any commentary on this yet.

The claim by plaintiffs that their litigation investment cannot be easily distilled down to a single case is simply preposterous. Since the plaintiff's claim that they are litigating these cases on a "gigantic scale", the problem can be distilled to the simplest form by identifying all their fees as either:

        A) Directly related to the Foster case
        B) ... or not.

The fees for the Foster case would be A + (B divided by the # of cases in litigation). A gross oversimplification, no doubt - I'm sure there are lots of gray areas, either real or imagined by the plaintiffs - but it yields an interesting observation: The argument that the plaintiff's fees are intertwined with all the other cases would force them to reveal _all_ their expenses, and not just the ones tied directly to the Foster case, right?

I have to assume that this is so distasteful an option to the RIAA that it's never going to happen, though. Which means that someone somewhere must be making a decision about what fees are relevant to the case. So who is doing this? The court? Surely that decision shouldn't be left to the plaintiffs.

Regardless, I can't wait to see what this yields. Please let us know once you have the documents in hand!

Re:Fee Determination?

[NewYorkCountryLawyer]

My guess is that the fees are on an hourly basis, and that they are broken down on a case-by-case basis, so that it's no big deal to give Ms. Barringer-Thompson a couple of printouts -- one for the first national firm, one for the second national firm, and one for the local firm.

That's a shock

[Slashdot Parent]

I suspect this AC is an RIAA troll.

That's a shock. You suspect just about everybody is an RIAA troll. Do you still think that I am an RIAA troll?

There is a fine line between skepticism and paranoia.

GRRRR!

[asphaltjesus]

While I appreciate the discussion so far, the point the RIAA is making is to instill fear into the hearts and minds of digital media users.

DON'T SHARE OR WE'LL FIND YOU AND SUE

That's the take-home message for joe and jane sixpack with a pc that their little janie sixpack uses to load her ipod.

It's about maintaining the climate of fear, and making it okay to treat media consumers like criminals and foist complex DRM schemes on consumers. The RIAA is doing a heck of a job getting this point across.

Can it now be forced?

[cheros]

Would there be a way to force this disclosure? Or maybe something to start some detective work on? In my experience, anything a malign force is trying to hide is worth a bit of sunshine.

In any case, this has now set TWO precedents the RIAA campaign could have done without. Not only did the defendant win, cost recovery was also granted (countering the usual blackmail of prosecuting someone dry).

Well done. I'm not for breaches of copyright, but I'm also not for abuse of the law. Somehow we ended up with an ever increasing gap between law and justice so it's nice to see something that goes against the trend :-)

Re:Can it now be forced?

[NewYorkCountryLawyer]

It is forced. The judge has ordered them to turn it over.

The only way they can get out of it is to drop their challenge to the 'reasonableness' of Ms. Foster's attorneys' fees.