In Praise of Lawsuits
I’m known as someone who erects barriers to help clients protect their assets from frivolous litigation. And there’s plenty of that in the US. One of my “favorites” was a lady who walked into a bucket ladder when she was texting on her cell phone and received a whopping $161,000 jury award.
But not all lawsuits are frivolous. A heartbreaking example is Bimla Nayyar, who was admitted to a hospital in Michigan to repair a dislocated jaw. Instead, due to a mix-up, doctors performed brain surgery on her by mistake. She died two months later.
A jury awarded Nayyar’s family $20 million in damages. But due to another mix-up – this one by the family’s lawyers – they didn’t receive a single dollar of this award. The lawyers pressed forth a claim of negligence when they should have pursued a malpractice award. Because of that mistake, the jury award was thrown out.
If a person has unjustly suffered because of something you've done, it will usually be much less expensive to negotiate an amicable settlement than to go to court.
But not everyone sees things that way. Corporations, in particular, often look at lawsuits as a cost of doing business. Credit bureaus are a great example.
About a decade ago, a friend of mine was deeply in debt. A creditor sued while he was out of town and obtained a default judgment for $7,000. My friend paid off the judgment, and then for more than two years tried to get Equifax to record it as being "paid" in his credit report. He repeatedly sent copies of the "satisfaction of judgment" to Equifax but received back only form letters stating the delinquency had been verified. Equifax corrected his credit report only after he hired an attorney and sued the company. He eventually received a $15,000 settlement.
Lawsuits against companies that manufacture defective implantable medical devices are another example of litigation I don’t view as frivolous. Numerous devices have been approved by the Food & Drug Administration that have led to serious adverse health conditions in patients who had them implanted.
One particularly egregious example is transvaginal mesh. Millions of women have had this device implanted to treat pelvic prolapse and urinary incontinence, both common complications of childbirth. The mesh is intended to support weakened organs and repair damaged tissue.
A significant number of women have experienced catastrophic side effects, sometimes years after the mesh was implanted. Symptoms include vaginal scarring and pelvic, back, and leg pains. In the US alone, more than 100,000 women suffering such side effects have filed lawsuits against the manufacturers of this device.
At what point do you decide to file a lawsuit? My friend sued Equifax only after he spent many hours talking to the company’s customer service department and repeatedly submitting documents proving his debt had been paid off. Still, his credit report failed to reflect the payment. He felt that he had no alternative but to file a lawsuit to correct his record. And it worked. Once Equifax agreed to pay him $15,000, his file was corrected.
Clearly, credit bureaus, medical device manufacturers, and other companies consider lawsuits simply a cost of doing business. They’re not likely to change their behavior. When their negligence injures you, the only way to obtain recourse is through the courts.
Still, it’s always best to avoid lawsuits if you can. For instance, my friend might have avoided the debacle with Equifax if he had paid off his creditor before it obtained a judgment against him. And individuals considering a medical device implant should realize that the approval process for these devices in the US is much less rigorous than for pharmaceutical drugs. Since side effects may show up years later, it seems wise to implant only a device that’s been in widespread use for at least a decade. Newer is not always better.
To keep business disputes from ending up in court, draw up contracts with your business partners outlining exactly what is to occur. Have an attorney create the contract based on your agreement, or at least review your agreement. The contract should also stipulate that disagreements are to be handled through impartial, expert arbitration.
If you feel you have no alternative but to file a lawsuit, find a lawyer whose focus is litigation against individuals or companies who have caused injuries or losses similar to the one you’ve suffered. My friend who sued Equifax hired a litigator who focuses on lawsuits against credit bureaus that fail to maintain accurate data in the credit files they sell.
If you can’t afford a lawyer, and you have a strong enough case, the lawyer may be willing to take the case on contingency. In that event, you’ll pay the lawyer nothing unless you win a judgment or settlement and receive money from the defendant. Your only up-front costs will be court fees.
Be realistic. If your own negligence led to your injury, the attorney for the person or company you’re suing will certainly highlight this fact in front of the jury. It’s almost always best to opt for a negotiated settlement rather than go to court. It’s also much more private.
Finally, if you have a serious disagreement with an individual or company, try to resolve the issue amicably. Talk directly to the person or company involved, if possible. I’ve long advised clients that it will be much less expensive to negotiate a settlement than to go to court.
It's also the right thing to do. Ethical behavior will prevent many, if not most lawsuits.
Protecting your assets (and yourself) against any threat - from the government, the IRS or a frivolous lawsuit - is something The Nestmann Group has helped more than 15,000 Americans do over the last 30 years.
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