Obama imigration strategy may backfire?

[iatrogenic]

iatrogenic jumps from the contractor to suing the general contractor and/or the premises owner. Yes, that's theoretically an option, but far more often than not, it isn't a viable one. You could sue them if they affirmatively did something to cause the worker's injury (and even that isn't always straightforward), but usually, that isn't what happened. Usually, the construction worker is injured by the negligence of his employer or coworker, and general contractors and premises owners generally don't owe a duty to ensure that their contractors (such as the injured workers' employer) perform their duties in a safe manner.

The only way you can get at a general contractor is if it retains a right of control over the details of the work performed by the injured person. Usually, they do have such control, so why don't these cases typically work? Because the nature of the control has to be very specific not just to what's going on on the job site but to the actual mechanism that caused the injury. Nevertheless, the real barrier is that there's an enormous mountain of Supreme Court and court of appeals decisions reviewing the evidence of control that typically exists and deeming it insufficient as a matter of law, which means the court is wiping its *** with your Seventh Amendment rights. You don't even get your day in court.

To say that an injured employee's option to sue a GC or owner is not a viable option is laughable. This happens regularly even if the injured employee is already collecting, or has already collected, workers comp benefits. In the event the injured employee's employer had comp, and the comp paid out, and if the employee wins the suit against the GC/owner, he gets to keep the amount remaining after the workers comp insurer is paid back- after his lawyer keeps 40% of the award. I'm guessing everyone has seen the advertisements of some lawyers (television, phone book covers, billboards) begging for injured employees to call them. The lawyers even come up with descriptive names like "The Hammer".

So why do these cases typically work in favor of the injured employee? First, because Supreme Court decisions are not involved ( a typical plaintiff lawyer is happy to argue a case even if the law is against him), and second, because legal fees charged by lawyers are extremely high. Most lawyers try and drag out a case as long as possible in order to keep up their billable hours, so the insurance carriers would rather just settle for "x" amount as opposed to being dragged through the courts for 3 or 4 years and running up ridiculous legal bills.

 

[Mr. Deez]

To say that an injured employee's option to sue a GC or owner is not a viable option is laughable. This happens regularly even if the injured employee is already collecting, or has already collected, workers comp benefits.

When the GC or the premises owner is negligent, then sometimes he can sue them - a fact I acknowledged above. This is a separate line of cases from your typical construction injury. Furthermore, the appellate courts are finding many of these cases barred by the exclusive remedy doctrine, depending on how the comp coverage was secured.

In the event the injured employee's employer had comp, and the comp paid out, and if the employee wins the suit against the GC/owner, he gets to keep the amount remaining after the workers comp insurer is paid back- after his lawyer keeps 40% of the award.

Congratulations. You know what subrogation is, at least on a general level, and of course, that's of very limited relevance to this discussion.

So why do these cases typically work in favor of the injured employee? First, because Supreme Court decisions are not involved ( a typical plaintiff lawyer is happy to argue a case even if the law is against him),

I've read some stupid things on this board from both Right and Left, but this has to be some kind of record. Frankly, you should be proud. It takes a lot thought and consideration to come up with something that idiotic.

Supreme Court decisions are deeply involved in almost everything that happens in a courtroom. The tort, contract, and property laws that govern most cases come from the Supreme Court. Even cases that arise under a statute rely heavily on case law in how they're brought - both procedurally and substantively. And a plaintiffs' lawyer or any lawyer can argue whatever he wants. They don't decide what laws will govern a particular case. The jury charge does, and guess where that comes from? Appellate court case law, especially from the Supreme Court.

second, because legal fees charged by lawyers are extremely high. Most lawyers try and drag out a case as long as possible in order to keep up their billable hours, so the insurance carriers would rather just settle for "x" amount as opposed to being dragged through the courts for 3 or 4 years and running up ridiculous legal bills.

Plaintiff's lawyers work on a contingency fee basis and front the litigation costs. Hours of work have nothing to do with the fees. They want a case to resolve as fast as possible to make money and keep their risk exposure to a minimum. In all the time I practiced, I never had a boss tell me, "drag that case out." They always said, "set that case for trial, and either settle it or try it as fast as you possibly can."

In addition, you're very ignorant on how insurance defense lawyers are retained. Some are hired on a billable hours basis, but a huge number of them are not, and even when they do, insurance defense law has some of the lowest hourly rates in the legal profession (for obvious reasons). Some carriers pay law firms a flat rate or some hybrid of flat rate and billable hours, either by the case or for the year (to defend all cases). In recent years, many carriers (especially, but not exclusively, auto carriers) use attorneys who are employees of the carrier. In other words, they don't get a legal bill. They just pay a salary (and usually not a very good one). The point is that the carrier is not at the mercy of a defense firm.

And keep in mind that regardless of the billing arrangement, the insurer controls the defense, not the insured and not the defense counsel. If a defense lawyer wants to file a motion, set hearing, take a deposition, hire an expert, or do anything that would add to the bill, the carrier can pull the plug on that anytime it wants. It can also fire the law firm. The carrier holds the leverage, not the defense firm. After all, if a defense firm decides to drop an insurer (which I've never heard of happening), that insurer will have a dozen law firms within a mile of their old firm lining up to take their business. They'll have another firm within the quarter-hour. If the insurer drops the firm, it's going to take a major financial hit, and for some firms, it would mean bankruptcy.

The point is that the "x" amount (nuisance value) is not as high as you think. Farmers Insurance took me to trial over $700 once, so their "x-amount" is lower than that. (They hire their own lawyers.) Even if billable hours are involved, the x-amount isn't going to be anywhere near enough to settle a significant injury case.

 

[iatrogenic]

When the GC or the premises owner is negligent, then sometimes he can sue them - a fact I acknowledged above. This is a separate line of cases from your typical construction injury. Furthermore, the appellate courts are finding many of these cases barred by the exclusive remedy doctrine, depending on how the comp coverage was secured.

You can't sue them sometimes, you can sue them every time! You can sue anybody for any B.S. reason you want, and it happens all too often.

Negligence has nothing to do with a lawsuit. It's all about deep pockets, and most lawyers are after settlements. Many plaintiffs lawyers couldn't give a damn about what the Supreme Court ruled. They are just like a bunch of Gypsies roaming around looking for a pocketbook to pilfer. Honesty from a lawyer is bad for their business, so their pleadings are filled with lies. They have to be in order to argue on behalf of their clients. I know you feel the need to defend your choice of career, but the truth is that the system is a game, and if you're going to play the game you should be aware of the rules. Lawyers are just trained liars, and you are lucky if you find justice in a courtroom.

Defense lawyers working on behalf of insurance companies work on an hourly basis. Settling a case quickly is not at the forefront of most of their thinking.

I do like listening to your highbrow opinion of yourself, however. You not only know what you know, but you know what others know and what they don't know. Just think of the power you hold. It is magical, and is like hearing from the modern day Oracle of Delphi.

 

[Mr. Deez]

Larry, Crock, chango, and zork,

You all have talked with me on this forum since 2008. You know I'm generally courteous and respectful of others' opinions, even when I disagree. I don't play the "I'm an expert who shouldn't be questioned card." People question me all the time on law, and I explain myself, as I've explained myself to iatrogenic. I'm OK with that, and if called upon, I don't mind showing where I formed the opinions and impressions that I have by citing to court cases, statutes, or whatever is at issue. People should be able to expect that in civilized discourse regardless of the topic.

However, iatrogenic has stepped way over that line. He's not just questioning and taking issue with me. He's pissing on what I have to say without refuting it with anything and generally acting like a 30-gallon drum of Summer's Eve. He's a toxic combination of astounding ignorance with supreme confidence that he knows everything, and that means he's not capable of having a serious discussion of any of this. So I'm done trying to do that with him.

Furthermore, I've got 40 liters of some of the best beer in Germany, Austria, and Belgium in my house, and that means I have better things to do than to get into a pissing match with some internet troll. However, there are few things I enjoy doing more than talking law even with people who disagree with me. Accordingly, if you guys have any questions on this topic or take issue with anything I've said or if you want to raise one of his points and ask me to explain myself, by all means, do so. I'm honored to discuss it with you.

 

[iatrogenic]

Aww man, don't go away mad....I like some lawyers.

 

[zork]

I get it Deez. He seems to be educated and trying. Maybe just disengage for this topic. We need people discussing even if they aren't right all the time. There are tons of opinions here that people in various stages of you name it are deciding to post.

I also got hammered at Octoberfest in 1999 after walking around for over an hour trying to find a seat so I could get a beer. It was drought-oberfest for that hour watching everyone else drink. The beer was the best part of that whole month long trip.

 

[Mr. Deez]

Aww man, don't go away mad....I like some lawyers.

I'm neither mad nor going away, and I don't care if you like lawyers. However, pissing matches are a waste of my time.

 

[Mr. Deez]

I get it Deez. He seems to be educated and trying. Maybe just disengage for this topic. We need people discussing even if they aren't right all the time. There are tons of opinions here that people in various stages of you name it are deciding to post.

I also got hammered at Octoberfest in 1999 after walking around for over an hour trying to find a seat so I could get a beer. It was drought-oberfest for that hour watching everyone else drink. The beer was the best part of that whole month long trip.

I've been told to stay away from Oktoberfest at least in Munich for the reason you mentioned - it's so crowded that even simple things like getting a seat or going to the bathroom is a huge ordeal. It's a shame, because I love beer (obviously) and consider Munich to be one of my favorite cities in the world.

 

[zork]

You can reserve seats for groups. I just happened over there for the weekend to check it out on my self imposed sabbatical with very little planning. It was the last weekend of the event. The locals were all trying to use up their coupons given by the local government. It reminded me of the Texas State Fair a lot except a lot more beer, and traditionally dressed Germans of course.

How do Germany and other nations deal with immigration? From what I remember back in 1999 most of Europe was pretty strict as well as Australia. It was very skills based. If you have X skill we will allow you to sign up to be on the list. Otherwise pound sand unless you have a corporation willing to sponsor your visa.

Birth rates are falling across the globe in 1st world countries. I understand the need for immigration but it seems like it should be, and definitely could be, better controlled to produce a better outcome for everyone involved.

 

[iatrogenic]

I feel like the new guy at school that just discovers he sitting with the nerds in the lunchroom.....

 

[Mr. Deez]

You can reserve seats for groups. I just happened over there for the weekend to check it out on my self imposed sabbatical with very little planning. It was the last weekend of the event. The locals were all trying to use up their coupons given by the local government. It reminded me of the Texas State Fair a lot except a lot more beer, and traditionally dressed Germans of course.

That's how I picture it to be, and I'm sure I'll go someday, but with a 14-month old, I can't imagine it now. lol

How do Germany and other nations deal with immigration? From what I remember back in 1999 most of Europe was pretty strict as well as Australia. It was very skills based. If you have X skill we will allow you to sign up to be on the list. Otherwise pound sand unless you have a corporation willing to sponsor your visa.

Birth rates are falling across the globe in 1st world countries. I understand the need for immigration but it seems like it should be, and definitely could be, better controlled to produce a better outcome for everyone involved.

I'm no expert on German immigration law, but my understanding is that you're correct. They're pretty strict unless you have a business sponsoring you or have a very high-demand skill. However, two big caveats to that, people from EU countries can come to Germany to work. Second, in the '60s, '70s, and '80s, Germany allowed a lot of unskilled labor from Turkey for the same reason the US allows (legally and illegally) unskilled labor from Mexico. The Turks work for cheap and work pretty hard. However, there's a significant criminal element of Turks, and of course, they're Muslims. So while some elements of the German economy benefit from them, the country pays a significant social cost.

Germany has some illegal immigration from the Middle East (especially Syrians) and Africa. It's not a lot of people, but many of them are dangerous.

 

[NJlonghorn]

Negligence has nothing to do with a lawsuit. It's all about deep pockets, and most lawyers are after settlements. Many plaintiffs lawyers couldn't give a damn about what the Supreme Court ruled.

There certainly are lawyers who only care about leverage, and don't give a damn about the law. But it is relatively rare in the personal-injury arena because insurers generally fight the frivolous cases. Frivolous litigation and overzealous lawyering is a much bigger problem in consumer-fraud / class-action lawsuits. Those cases are famously expensive to defend, so nuisance-value settlements can be huge. Sleazy lawyers know where the money is, so that's where they go.

Honesty from a lawyer is bad for their business, so their pleadings are filled with lies. They have to be in order to argue on behalf of their clients. I know you feel the need to defend your choice of career, but the truth is that the system is a game, and if you're going to play the game you should be aware of the rules. Lawyers are just trained liars, and you are lucky if you find justice in a courtroom.

It's funny that you say this, because I was just discussing it the other day with a colleague / friend. The pressure to lie comes mostly from clients, not lawyers. People who think all lawyers lie get mad when their lawyer won't to lie for them. Some lawyers capitulate, but most don't. Personally, I spend an exorbitant amount of time convincing clients that lying is a bad idea (not to mention sleazy and illegal). Most (but far from all) lawyers do the same thing.

Defense lawyers working on behalf of insurance companies work on an hourly basis. Settling a case quickly is not at the forefront of most of their thinking.

As Deez said, most personal-injury defense lawyers work for (a) a fixed fee per case, (b) an annual retainer, or (c) a salary. They have no incentive to run costs up. Insurers aren't stupid, and they understand how to avoid counterproductive motives.

 

[NJlonghorn]

(Hijack alert)

Deez,

On a recent thread, you asked about how to use the link feature on this new platform. I'm not sure if you saw my response, but it inspires me to offer a tip about another forum feature you don't seem to have mastered.

Sometimes quotes have a reference to who is being quoted, and sometimes they don't. It is helpful to differentiate these because other users can tell who said what. Three scenarios arise:

1. If you want to quote a single passage from a HornFans thread, you can block the text and right click. Using the "Reply" option will take you straight to the bottom. The quote will appear, in attributed form and with a link to the original post.
2. If you want to include multiple quotes in a single reply, block each quote separately, right click, and use the "+ Quote" option. When you have assembled all of your quotes and are ready to post, click the "Insert Quotes" button just below the reply window at the bottom of the page. This will then pull up every quote you have stored, each in attributed form. This also enables you to quote something from another thread, with a link to that thread.
3. If you are quoting from an external source, you have to use the unattributed format. You do that with the Insert icon, then the Quote option. Or, you can type your own "[QUOTE ][/QUOTE]" then type the quote in between. A link to the source can be added separately.

 

[Mr. Deez]

NJ, thanks for the tips. What I had been doing is simply replying with the quote and then separating out the text into separate quotes using the "[QUOTE ][/QUOTE]" text, which leaves off the name. Your method is much better.

 

[chango]

I feel like the new guy at school that just discovers he sitting with the nerds in the lunchroom.....

Nothing to do with being the new guy. This board’s threads have often deteriorated quickly into a trash talking “us vs them; Obama sucks – no Bush sucks” mentality. There are a lot of us guilty of too quickly falling into that trap – but Mr. Deez is almost never in that group. So you’re barking up the wrong tree there

 

[pasotex]

I wanted to say the same thing as Chango but was too lazy.

 

[iatrogenic]

As Deez said, most personal-injury defense lawyers work for (a) a fixed fee per case, (b) an annual retainer, or (c) a salary. They have no incentive to run costs up. Insurers aren't stupid, and they understand how to avoid counterproductive motives.

That is surprising. How do you know this? Is there an independent source you can provide, because every firm I have ever dealt with bills hourly.