Your POV that money distorts and helps determine winners, while seeming so prima facie obvious, does not come close to getting to the real problem. I know this because I have money and I've spent well over a million dollars on attorneys in the last decade and I got very little in the way of ... not justice, very little in the way of consideration of the core legal questions in each case; in fact, I don't even know how the interesting core legal questions would have been resolved, the courts completely dodged them; and along the way, I saw a vast amount of phony posturing, amplification of minor details, and outright lying and manipulation of the legal system, mostly by attorneys; and the judges eat it up, because they too are attorneys. (and BTW, when a judge sees an unsophisticated indigent defendant, they actually do bend over backward to help them, say a confused tenant who does not pay rent is most usually given many many more chances.)

To put it into the context of this guy's patent rant: my point would be, there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not. The "right/just" answer would be found more quickly and more cheaply and more rationally if the judge would simply decide that first in a non-binding way, like "from what I know so far, here's the way this is tilted". Then after that, if the losers wanted to spend money to present a stronger case they could, and the judge could say "warmer...warmer... colder". Then after all that, if you want to try to change the thing on a technicality like "yeah but you didn't serve the notice the right way", then the court would hear that.

The way courts decide things is to completely front-load all these arcane minor points, and it has the effect of squeezing the shit out of the litigants to force them to settle. "You think you have a legal dispute that's worth this much? I'll give you dispute resolution that costs more and much of your life. Now do you want to settle? Don't test me, as a judge I'm a former attorney, we win at this game. Now do you want to settle?"

In this example, as you say, "there is a question as to whether this patent is valid or not, and whether it covers this particular issue or not." If the defendant thinks those are real issues, then one of the first things the rules would have you do is to file a motion to dismiss arguing exactly those points. If the judge agrees with you, the case is over and you go home. (Of course, there is the possibility that there are other claims that aren't subject to those arguments, or that the plaintiff could amend the complaint to add new legal theories, but that's another story.)

To the extent it is true that courts "completely front-load all these arcane minor points" this is usually true only to the extent that these arcane issues are actually dispositive.

EDIT: Try thinking about it this way: whether an issue is arcane, and not what a person might think is the "real" core of the issue, is sometimes orthogonal to whether that issue is dispositive. And there are usually good reasons for this--though reasons that may not be obvious to non-lawyers. This can, and should, result in courts spending what may seem to the untrained eye like too much time on arcane but dispositive issues in an attempt to resolve a case efficiently.

I have a comment and a question:

The comment. Summary judgement does not accomplish what I think sheepleherd was proposing. As you say, if you get a summary judgment against you, you go home. That means that a judge has to be convinced that there is definitely no case in order to issue one. What's needed, rather, is a speedy determination of who seems to be in the right. It should not be final but should determine who pays going forward.

The question. What do you see as the problem in cases like this? Or do you see a problem?

And, just so we have our terminology straight, summary judgment is actually different from the motion-to-dismiss phase I was describing. In super simple terms, the latter happens after the parties have has the chance to gather evidence and seeks to determine whether it is legally possible for a party to win at trial. Therefore it occurs late in litigation, after parties have already spent a lot of money (but still before trial). The former typically occurs before evidence is even gathered to determine whether the plaintiff could legally win even if all of his or her allegations were factually true.

As for the threshold fee-shifting idea: I think it's probably not a good one. There are cases where it could help, but if the judge gets her threshold determination wrong, then it makes life even harder for a less wealthy litigant. The simplest solution, which many countries have implemented, is simply a loser pays system for legal fees. I'm not sure this is ideal either, but I think it is at least better.

There also is usually a possibility that the judge could require the loser to pay after the fact, if she determines that the case was especially un-meritorious. Another possible reform would be to loosen the standard that judges apply in choosing whether to award fees in this way.

But inasmuch as it was an official proposal, the proposition was not that the all costs would shift to one party; it was that if you lost the preliminary ruling on the main point you could decide if you wanted to spend money on further litigation or look for a settlement; in a more nuanced way, if the preliminary ruling was 80-20 culpability/damages conceivably the winner might also wish to litigate further. I wasn't shifting the legal costs, I was educating the decisions along the way.

There potentially is something to be gained from more "loser pays" legal fees, but I was not making that proposal.

I'm not sure what criteria you're using to judge that the proposal would be worse for a less wealthy litigant. Surely the proposal would be better in cases where one side is clearly right? The cost of patent litigation is currently huge. The only way a non-wealthy litigant can participate is with lawyers on contingency. No?

But I suspect fixing the legal costs is only a part of the patent problem. My understanding is that cases like the OP regularly go to verdict and find for the troll.

For example, and since you are an attorney I'll let you research this rather than give you the answer, does a signature on a shareholder petition under corporate by-laws require the word "certify" to be a valid signature? How much should be spent determining the answer to that? Seems pretty cut and dried to me, whether it is or is not required it's hardly breaking new legal ground. What's the answer? (and no weaseling out by saying "it depends". If you want to say "it depends", you need to finish the sentence, on what, and in that case the answer is what.)

And, frankly, I'm not surprised that it took a fair amount of legal work to figure out the answer. I, like you I take it, have the intuition that the answer should be "no." But I'm also not confident that the answer is not "yes." If the answer is "yes," I'd say the odds are 50/50 that there is a good reason behind it. (If, as one should, you count as a good reason "there is binding precedent in this circuit that says it must use the word 'certify'" then the odds jump to pretty near 100%.)

But I will say that, if you're trying to argue that the legal system is too arcane and complicated, a lawsuit over a "shareholder petition under corporate by-laws" is an exceptionally poor example. This is an especially technical areas of law that, among other things, makes the almost explicit assumption that, given the subject matter, parties will be unusually sophisticated and well resourced.

Lawyers have huge laundry lists of these ideas they get to spitball, except they get paid to do it, the more they spitball the more they get paid, and none of it has anything to do with the matter at hand, the legitimate grievance that the two sides have and are trying to resolve.

I just found it on more than one occasion to be unusually playground bullying rather than sophisticated. And on the same-ish topic as sophistication, lawyers like to couch things they say in the cloak of "truth and justice", like for instance, how many times have I heard that the right to petition is so sacrosanct that it's in our Declaration of Independence? Yet went you actually try to pursue a right to petition you are bogged down in lawyerly bullshit.

This is a pretty weird way to look at it. I would have thought it went more like this: opposing lawyers come up with some clever arguments to oppose your claim. One of them, I take it, was that the signatures on the petition were not valid because the word "certify" did not appear. Because the lawyers on the other side made this argument, your lawyers had to respond to it to reduce the chances that you would lose the case. Presumably the judge did not rule on that particular question because you wound up losing the case on some other ground (or settling). Is that right?

I should also add: I'm not here to argue that lawyers are always good at their jobs and that they always give issues the attention they deserve (no more and no less). This sort of risk assessment is a big part of the job, and it's not always easy. And when there is a lot of money involved, it can be rational to spend a lot of money to address relatively small risks. It could also have been that the certification question was a stupid one that your lawyers should only have spent an hour or two on. But instead, through poor judgment or something else, chose to go waaaay down the rabbit hole. I have no idea. But these things do happen. Lawyers are people, after all. One particular set of lawyers' poor judgment (if that is indeed what actually happened) is not a deep flaw in our legal system.

(By the way: what does the Constitutional "Right to Petition" have to do with any of this? I hope you don't think it has anything to do with your shareholder petition case, since the Constitution only protects your right to "petition the GOVERNMENT for a redress of grievances." It doesn't protect your right to bring a shareholder petition, and it most certainly does not protect your right to win every lawsuit that you think you're entitled to win.)

Rights to petition are, in a sense, even more fundamental than the right to vote, because historically speaking many undemocratic systems have been sustained because they listen to petitions. The worst dictators are the ones who kill you for petitioning.

This lawsuit I'm talking about was about both rights to vote and rights to petition and the lawsuit asked for nothing but rights to vote. They were gauranteed by the legal documents, ignored by the board, and only a lawyer would twist the very clear wording to say something else, based on standards that do not actually exist; and only a judge who was an attorney would listen to such crap.

I can see that in a messier case you might see a reason for seemingly nonsensical procedures, but this was so clean that all the worthlessness of our legal system was exposed. And I chose the Declaration not the Constitution because it also lays out "or you lose your claim to authority" which is pretty much how I feel to.

Great! How much would getting to that point typically cost a defendant in the case of a fairly obvious bullshit patent?

There are other dynamics as well, but I think this one dominates.

Also, you didn't answer the question as asked. If the goal is "file motion telling judge 'patent is not valid' without doing literally anything else", what exactly is the money spent on?

EDIT: Of course, it often is not actually clear whether a patent is valid and enforceable or not. This could require evidence from experts about obviousness, prior art, etc. Assembling all of this in a way that is fair to both sides, and presenting it to the court in a way that is clear and compelling, is difficult, as one might expect. So this idealized situation may not be too common.

EDIT 2: In case it's not obvious, this shouldn't be taken as legal advice. Every situation is different, so you should hire yourself a lawyer, and not act based on general ruminations you read on the Internet by people like me. I am not your lawyer.

> drafting that motion

I'm going by this particular case, where the patent is obvious and patent bullshit. I would imagine that here a motion would be a form letter that could be handled in less than an hour? (Going by experiences in the german law system where i've seen a form letter to an unpaying client go out, cost and take effect, for half an hour billed.)

And yeah, in other cases it may be less obvious. I'm only talking about the case at hand, and other similar ones, where the patent can be seen to be invalid by anyone with good high school education and above.

Heck, shouldn't it be possible to informally request from the judge to say whether he already sees the patent is bullshit or not?

Since you don't get to file an unlimited number of motions to dismiss on the same topic (for obvious reasons), most litigants find that they want to put a substantial amount of effort into making their case as persuasive as possible before a judge sees it, even if the matter is fairly straightforward. It's the lawyer's job to help the client understand these levels of risk, and the client's job to decide how much money he wants to spend, given those risks.

This is further compounded by how vague judges will be in their decisions in some attempt to prevent a successful appeal. The judgements relation to the facts are so intentionally obtuse.

There are a few reasons for this: 1. Judges are not legislators. Judges apply the law, and if they don't like the law, or if the law is contradictory, they write a note in the decision asking legistlators to review the law.

2. If a lower-court judge is corrupt, but didn't violate legal procedure, what does "corrupt" mean?

A higher court will only consider an error in law from a lower court. But when the lower court commits an violation of natural justice/due process by not even considering what the original lawsuit is about and being incredibly obtuse about what they did consider, a higher court has nothing to rule on.

Whether you have money or not the real problem is the threat of loss due to the /process/ as opposed the merits and likely result of the case. That is the problem that needs to be solved.

I'm not saying I know how to remove the expense of the process out of the equation but that is what needs to be done.

Your suggestion is a good one. If the result itself is clearer earlier it would take some of the power out of the threat of expensive process.

I don't believe that moving #4 (or even #5) earlier in the process maximizes the possibility of a logically/legally sound conclusion, which IMO, is the purpose of the justice system. Then again, your comment has identified speed as a priority, not a thorough examination of the merits.

If the procedural rules don't offend you, then we might just be talking about expensive lawyers. Not all lawyers are expensive.

Getting to the merits is the point but the point is often lost in the game of the process. True statement?

True, but you're assuming that the process and the merits are totally distinct (in fact, my own comment reads that way ;]).

But, as another commenter noted, processes themselves can influence merits (e.g. missing a filing deadline, or enforcing discovery requests).

I agree, but I think we can be more specific.

Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things.

Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement.

So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent?

Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.

It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.

Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund.

Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.

I don't think BigCorpA could get away with simply gifting a lawyer a large sum of money to work on cases with arbitrarily low costs, but I do think they could have contract lawyers who work for the fee their opposition works. These small frivolous cases run by a person representing themself should not require millions to get shut down as being such (and if they are that's a different legal system dysfunction), but there'd be more than enough cases where the amount spent is large and being on deck for those would be worth it to a good lawyer. Not to mention cases where the company thinks upping the spend is worth it to defend on something real and important.

Note that I don't think your scenario is actually all that different from the current reality, other than the idea that your opposition is funding you, but there are almost certainly arrangements where this would not be the case.

Also, if your case is dismissed as frivolous I think you would not get any of the fund regardless.

Good points :)

Maybe I'm reading the parent comment wrong, but I assumed this system would allow for unequal funding between the two sides. So if you think it's a frivolous lawsuit that you can easily win you would just let the other side fund the entire endeavour.

A solution to this might be to say that any money not sent on the case is given back to the person who payed more, so it's not an avenue for making money.

Which is maybe not an unreasonable solution, but it strikes me as fraught with unintended consequences.

The ramifications on corp to corp lawsuits would be amazing.

I see at least one flaw, though: what if the two sides disagree about the amount of money that should be contributed to the fund?

I haven't really thought through the consequences of requiring some kind of agreement in advance, but my instinct is it couldn't really work just because being obstinate would be heavily rewarded.

It's not crazy to think that before the state should use it's power against you on behalf of another citizen, it's up to the state to ensure that this action is lawful and correct to do (which might require supplying you with an attorney).

Demonstrably not in the case of patent lawsuits, especially in east texas.

"Ward’s rules unleashed what became known as the 'rocket docket.' In his first year on the bench, Ward heard 5 patent cases. In 2006 his docket had 87. 'I did not anticipate that there would be an explosion of lawsuits,' says the now-retired judge."

"Yet Marshall soon gained a reputation the judges may not have welcomed: it became known as a plaintiff’s playground, a place that frequently handed out tens, or even hundreds, of millions of dollars in damage awards. In 2006 the New York Times reported that of the patent cases that went to trial in Marshall, jurors ruled for plaintiffs 78 percent of the time, far more than the national average of 59 percent. From 2001 to 2006, plaintiffs prevailed in eighteen straight verdicts in Marshall."

http://www.texasmonthly.com/politics/patently-unfair/

Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.

Almost every country except the United States uses this system.

Not directly related, but personal bankruptcies aren't a thing here. If a debt can't be paid, it goes to recovery proceedings, and will stay like that until it expires in (generally) 15-25 years.

Almost every country except the US uses agencies of their executive branch of government to enforce most labor, housing, discrimination, harassment, and civil rights laws. In the United States the enforcement of such laws is often split, with only very serious violations being handled by an executive agency and the more common violations simply creating a cause of action for a civil suit.

Even if the amount a loser has to pay is limited to what they themselves paid for their own attorneys it would still greatly discourage many people from bringing suits over labor, housing, discrimination, harassment, and civil rights against anyone who has significantly more resources than they do. If they spend a lot to get a top attorney and lose then they have to pay a lot. If they spend little on an attorney to limit the maximum they might have to pay then they have to worry that the other side will out lawyer them.

The point about potentially discouraging lawsuits has a grain of truth in it, but not more than a grain. In the US you'd have to pay $X regardless of whether you win, and with the loser pays system you pay $0 if you win and $2X if you lose. It is at most a factor of two. The reality is that most people who can't afford $2X also can't afford $X. Consider what you get in return: (1) if you're quite sure you can win, you can sue at no cost (2) big companies can't just bully people into a settlement (like they attempted in this story). The net effect is that poor people who are clearly in the right gain the ability to sue, and rich entities who are clearly in the wrong lose the ability to extort settlements from poor people, but poor people who can afford $X but can't afford $2X lose the ability to sue if they aren't sure they can win. A very good trade-off if you ask me.

That just gives financial unsupervised power to the judge, without any clear definition of involved terms. Which doesn't really sound like a good idea.

What I don't see is how anyone who is inherently subject to popular opinion can possibly rule impartially in the interests of justice, but that's a different question.

But it still doesn't solve the idea that the "Law is more equal the more money you have." .

If you lose and your suit was 100% without merrit, you can be sued for lawyer fees.

From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.

A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.

In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.

In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.

I don't really have an opinion either way, those are just the common arguments against it.

These little guys have too much access to the legal system.

That's why it's hard to clamp down on. Nobody wants to make it so only big guys can have access to the legal system.

They are rich enough to sue. They are not "the little guy", they are often well funded businesses that buy patents wholesale for the sole purpose of suing other businesses.

At my last job I fielded a call from the "scanner patent" guys, luckily I knew what they were up to and I declined to answer any questions. They framed the call as being from Staples for a survey about the office equipment we may have bought from them, i.e. they flat out lied. Since I was in charge of all office and IT equipment purchase decisions, I knew we'd never bought a thing from Staples, and when they started specifically asking about multifunction printers with scanners, I just said "troll someone else" and hung up.

#1: Big corporations can push small guys out of business by tying up their products in patent disputes.

#2: Patent trolls can bleed corporations big and small while producing nothing of value.

These problems are specific to the patent industry.

Are there similar problems in other areas of the law? If so, we may be able to identify and try to solve the larger problem. If not, we just need to focus on patent reform which is an easier problem.

There is a form of patent trolling that only goes after small guys. But they'd avoid actually litigating the patent and just push a settlement. They'd never take it to trial because little guys can't pay out enough to justify the cost of a patent trial. That form is basically extortion. They ask for a small sum of money to just go away.

Outrageous.

Surprised there isn't a more meaningful response from Google.

I do see people taking advantage of legal systems in other countries in order to do other behaviors and applying a legal arbitrage of sorts agaisnt another legal system (i.e scihub/libgen vs elsevier), so maybe this will become more prevalent as time goes on as the technical means to do so becomes more available.

It doesn't matter how fairly the laws are written if the judges presiding over them are assholes.