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Comment by antonvs | Hacker News Reader

> completely inaccessible and non-existent to individuals or small companies. Even to medium companies. Only mega corps and law firms can afford to use the legal system.

For individuals you have a point, but for small and medium companies this seems like an exaggeration.

I've worked for several startups. The smallest was one that I co-founded with no outside funding - we maxed out at five employees, three of whom were co-founders, but nevertheless we registered and successfully defended trademarks and copyrights. That business ran until its main product became obsolete, for about 5 years.

The funded startups I've worked for all used the legal system around IP in various ways: trademarks, patents, copyright.

One of these bogus DMCA claims would be easily and cheaply dismissed by any competent lawyer. And really, probably doesn't even require a lawyer unless a hosting company acts on it and doesn't listen to any objections.

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GP is talking about cost-prohibitiveness of legal counsel

a large company can absolutely drain your small/medium business with frivolous lawsuits.

the point is that Western judicial system largely caters to capital not justice.

> the point is that Western judicial system largely caters to capital not justice.

The problem is that there is no way to make it 'fair'. All the proposed reforms are also incredibly unfair, just in a slightly different way from what we have.

money is liquid democracy - kinda sad, but here we are

No, money is the ability to marshal goods and services which in any system with legal representation will lead to better outcomes for you.

You can trade off against other forms of fairness.

For example, if you remove the power of precedent suddenly knowing and being able to search case law becomes unimportant, giving laymen a huge step up in defending themselves. However it also makes the legal system far more inconsistent across judgements.

Not if the law did what it was supposed to do; state the conditions under which a given sentence ought to be executed.

Instead laws are poorly written meaning case law becomes the actual law

"Fair" is always impossible, but the goal is "fairer", which really is possible if we accept that lawyers and big corps have to have it slightly worse so everyone else has it significantly better.

Okay, I'll bite.

You tell me how to fix it.

And I'll tell you how a bad actor will abuse your fix.

If a lawsuit is dismissed by a judge as frivolous, automatically put a minimum fee of a few good thousand dollars that the claimant now has to pay. Of course, it can be appealed, but the minimum fee on the same judgement just goes up.

Of course there are tens of other small improvements that could bring improvements, starting from simplifications of the legal code to small claims courts that would be allowed to punish minor offenses by corporations that are repeated on a systemic scale.

What are the abuses that you see, and most of all, do you think those abuses would be worse that the current abuses?

Not OP but if the costs were a function of the wealth (highly nonlinear, such as exponential) then a large company would need to think twice before going to court.

This also means that the smaller players wood get drained out if they try to abuse the system.

Another thing is that the CEO wild be forced to attend, or have very high costs to not be there. This is too ensure that me, as an individual, have much more to loose personally (and can be exhausted) in front of a corporation who has leaders wise job is to be at the court.

I did not put a lot of thoughts on the ideas, but the basic one is too make everyone suffer the same relatively.

This is partly sourced from Finland roads, where you pay in function of your wealth when you cross the law

It's mostly just the US judicial system. The US has about 3x the amount of lawyers per capita compared to other Western nations. The glorification of lawyers in US media is sometimes a bit sickening as a non-US citizen.

It's a weird quirk that having so many lawyers hasn't driven down the cost of their services but seems to have instead driven up demand.

I think cause and effect is a litigious system -> demand for lawyers -> lots of them, well paid.

Some of the system being like that probably comes partly from the founding idea of "a government of laws and not of men" and the US constitution.

> One of these bogus DMCA claims would be easily and cheaply dismissed by any competent lawyer.

If you're a new small business owner how do you vet lawyers for competency? If you accidentally engage a less then competent lawyer who screws up, how does that impact the individual and company?

Working out whether a lawyer is good, and more specifically good for what you want, is difficult even for another lawyer.

People often ask me for recommendations of a lawyer outside my field, or indeed in my field if I can't help them because my firm is conflicted or for some other reason. The thing is I don't personally use lawyers, so I have only the vaguest idea. I can tell some things from firms' reputations and their websites, but even for me it is a hard call.

And the law firms I have most experience of in practice tend to be the ones which I would go out of my way to disrecommend :-).

So I agree, that is a problem. Particularly for litigation. Unless you are doing litigation a lot - which is likely to be bad news for you - you can't get experience of a lawyer and decide that you like them. Word of mouth is also rather less useful.

It's funny that the dynamic seems to be entirely reversed in criminal or collaterally-related-to-criminal matters since I could have told you by the time I graduated (and had been practicing on a limited license for a year) which attorney is more competent at what specific aspect of defense related work, and when I jumped to federal CJA work and then removals which is administrative entirely, it also took very little time to suss out the quality of not only other attorneys working on the defense side but the prosecutors and their proclivities, strengths, and weaknesses. In fact I think I'd be a pretty bad attorney in my field if I didn't pick up these things pretty quickly, and the question of recommendations only happen when there may be a conflict anyway, usually because it's pretty normal for a case to have more than one defendant. The biggest case I worked on had 68 and everybody ended up pleading but even with that, I feel like just seeing how different attorneys tackled the same basic case but from a slightly different angle gave a decent amount of insight, including how quickly they are able to get a plea worked out and how they approached collateral issues that always comes out of massive fishing expeditions. I mean, it's a service industry gig with a fancy title in the end and since law school didn't teach anything about lawyering - even legal writing didn't actually cover any client management and actual courtroom procedure, although the 2 weeks we spent on what was essentially a doxxing exercise was really helpful combined with some programming skills - it feels inevitable that through exposure on a daily basis one would get a feel pretty quick of others in your field.

And there's always reputations and word of mouth but I find that to actually be more or less on point when it comes to particular niches, like if you need someone who spoke a particular language or dialect, or someone who understood how to cross examine about technology and not have the jury fall asleep on you, or someone who can handle a child witness and someone who can't. It's not that different in the civil context, is it? There was even a prosecutor who was widely known to be susceptible to running himself into Batson challenges and sure enough the first trial I had against him he managed to dismiss every minority in the pool leaving me and the client the only two in the room which was glaring since the jurors began noticing that something was before we even got there. It was moot since we got a mistrial but if the opposing side is known to be generous with free issues to preserve for appeal you'd be on the lookout, wouldn't you? Or am I still overestimating how often civil attorneys end up in front of a jury broadly?

One big difference in England (I'm an English barrister, so that's my jurisdiction) is that most short civil proceedings end up being effectively closed to the public, or at least unlikely to be viewed by other barristers. Longer proceedings will typically be held in larger court centres where you are, again, less likely to see what fellow advocates are up to.

You do meet opponents, but in some fields, not often enough to really know.

In crime, your client would be in the cells much of the time and you could sit at the back of the court and watch lots of counsel do a good or bad job.

Of course even the civil bar do get to know each other in the way that commercial transactional lawyers - which is what I do now - don't have as much opportunity to do. I am typically dealing with commercial organizations all over the world. Too many lawyers to get to know.

I missed saying that in England (1) civil juries are essentially hen's teeth nowadays and (2) you don't tend to cross-over. Either you are in court most of the time, or advising on court proceedings, or you are a litigator (running those proceedings but not going to court) or you are a transactional lawyer who has nothing at all to do with them.

Only lawyers really know how to vet lawyers for competency, I've found. More people use the quality of the jingle as a guide than any useful way to discern competence, partly because people broadly fail to understand what a lawyer is supposed to do (and this differs depending on context, civil proceedings and criminal proceedings and administrative proceedings concern sometimes vastly disparate interests and in turn, responsibilities and expected outcomes).

The best way, generally, is to survey other lawyers in the same field and jurisdiction and cross-reference to see if a firm or solo practitioner gets more recognition from their peers independently, btw. It's how lawyers find representation in fields they have no familiarity with. The jingles at best are entirely irrelevant and may even be an indicator that the firm relies on volume more than it really should.

edit: should mention that this generally applies for criminal or administrative cases. The civil arena is far too big and varied for me to suggest a heuristic that can be generalized since it concerns so much work that is wildly different and also, comparatively few court appearances (although I'd likely use the same method, but starting with my classmates, if I need to hire someone for a civil matter, if I have a classmate who practices in the field and in my jurisdiction).

I've received takedown claims and requests to settle before from some trolls (once by Getty but I didn't handle that one directly). Usually it was old contributed blog posts with an improperly cited image or site theme components we purchased that contained stuff that wasn't properly licensed. We'd take it down and then onto the next step...

I made friends with a few local lawyers, explained the situation and asked them to send a response on their letterhead or via email telling them in proper legal language to 'fuck off' (usually they'd mention it was outside statute of limitations and the use was never willful infringement or it was user contributed and we were only hosting the content). There was never a situation where they didn't leave us alone after that. I guess they assume real small companies will either panic and pay to settle or ignore legal summons and lose by default?

> telling them in proper legal language to 'fuck off'

I refer m'learned friend to the precedent of Arkell v Pressdram

https://news.lettersofnote.com/p/arkell-v-pressdram

The better you know your business and the law, the better you can judge the lawyers.

Theoretically it is every individual’s responsibility to know and comply with the law.

We originally went to a copyright lawyer who quickly turned out to be pretty bad. We dumped him and found someone else.

A lot of this stuff is routine and doesn’t need a superstar. A general counsel can typically recommend specialists if you need them.

I think you have to factor in your legal jurisdiction, skill level of yourself and close associates, and the network that builds from that, to compare legal costs.. one might say that as an active and functioning startup with employment, you attracted legal talent.. some outsiders, in various jurisdictions, might have some trouble finding legal services and for the right prices.

I've always been a fan of the concept of simply billing the losing litigants the legal expenses of both sides when the case was obviously frivolous. Seems like it would shut this shit right down.

That's how the UK works. But making it that expensive to sue someone means it's harder to file meritorious or important cases too.

Sounds like a good way to send legal bills into the stratosphere.

I get to choose the best and most expensive lawyers and tell them to bill however many hours they like, because that asshole I'm suing is going to have to pay for it?

Or I want to keep costs down, but the other guy has hired a team of three $500-an-hour lawyers to bury me in paperwork? And the only way I can avoid losing and having to pay is to respond in kind?

Sounds like a recipe for deep-pocked corporations like Disney to win every legal action.

If Disney were designing the system, sure. If people who were interested in improving the system has their hands on it, there are a bunch of avenues available. You could choose to regulate eg a stipulated legal fee, you could choose to set a high bar for 'frivolous', you could choose to moderate the fees by taking into consideration relative or absolute income, or by compensating 'Lesser of two parties legal fee amounts'.

It certainly seems appropriate that something like copyright litigation, which has statutory "civil" penalties in excess of the GDP of a medium-sized country, demands the judiciary branch extend some due process (including Gideon) to the unincorporated defendant.

Aren't trademarks and patents exactly the type of thing that would need to be argued in court and therefore cost more money than most startups have?

Generally yes.

Trademarks are pretty straightforward - pretty sure the majority of trademark claims don’t go to court. Even our little 5-person company dealt with both sides of them: a claim against us and claims against others. There’s typically not that much to debate in court. In the claim against us, we had to change the name of a product, there was no point in going to court.

Patents need more money, but all the externally funded startups I’ve worked at had the money for that - investors consider them important.

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