How do you define "meritless"?

Here's a question: If a plaintiff loses a lawsuit in court, does that automatically mean the case was bogus? That's what AEI's Ted Frank seems to be suggesting in his comments from a few days ago. As evidence, he pointed to Bill Lerach's shareholder class action against the big banks and financial institutions that aided and abetted the Enron fraud, which was decertified by the 5th Circuit Monday.

I'm not intimately familiar with the case, but a quick read on it suggests that the Enron bank litigation was anything but meritless. I've not seen too many people other than Ted argue that the banks were simply "innocent bystanders" in the Enron debacle. Even the judges on the 5th Circuit acknowledged that their decision was deeply at odds with our notions of justice and fair play, largely because the evidence showed the banks were deeply and knowingly involved in the Enron fraud. Reasonable lawyers obviously differ on the interpretation of the law that allowed the lower court judge to certify the class, but the facts at the heart of the case strike me as extremely serious. This was no Econo Lodge suit.

The civil justice system was designed as a place where people can resolve legitimate disputes without shooting at each other. So I can't believe that just because one side wins and the other side loses doesn't mean that the plaintiff didn't have a legitimate dispute or that the courthouse wasn't the best place to wrestle with it. Yet the tort reform movement seems premised on the notion that the corporation is never wrong, and that average people have no business questioning its conduct, particularly in the courtroom.

If the real purpose of tort reform is to make the legal system work better for everyone, its leading lights would occasionally acknowledge that some lawsuits have merit, that juries get a lot right, and that big awards are occasionally warranted. But that just never happens. Instead, they categorize all lawsuits against "innocent bystander" banks or other corporations as simply meritless, and when juries on those rare occasions find for a plaintiff, well, that's just an error that needs to be corrected by a judge (preferably not one on the 9th Circuit).

Comments

[Ted]

Many lawsuits have merit, juries get it right the majority of the time, big awards are occasionally warranted, there are times when corporations are wrong, and people from all walks of life have the right to vindicate meritorious cases in a courtroom. I've seen you in the audience on at least one occasion when I've said at least some of that, so I'm curious where the "never happens" comes from.

I'm also curious how you derive "any lawsuit a plaintiff loses is bogus" from my contention that Lerach's lawsuit against third-party banks that lost money in the Enron collapse was bogus. (I've even posted on lawsuits that plaintiffs lost where I argued the court got it wrong.) And given that, in the comment, I explicitly distinguished the Lerach suit from the Econo Lodge suit, I wonder why you attack the strawman by saying "This was no Econo Lodge suit."

Is it too much to ask you to address what my position actually is if you're going to mention me by name in a post?

[Supremacy Claus]

Meritless will include any claim involving a supernatural doctrine, allowed to proceed in violation of the Establishment Clause. In torts, foreseeability of an accident is at the core of duty. Before the judge allows such a bogus claim to proceed, the biased, pro-land pirate rent seeking lawyer on the bench should be forced to provide the lottery numbers of that day. The chance of foreseeing those is about the same as that of foreseeing most injuries.