SIHTAF: The Video Game Addiction Lawsuit

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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61 Responses

  1. Avatar Kim says:

    With the court backlog, I am relieved to understand that this took up a minimal amount of time.Report

    • Avatar Burt Likko in reply to Kim says:

      Many people would say “Five and a half months isn’t minimal,” but it is. A few other wrinkles with this particular motion which I elided from the OP (not hugely relevant to the post’s focus), will also have minimized the burden of the litigation on the defendants. What I’ve described here is pretty close to as good as it gets for throwing meritless suits out at an early stage of litigation.Report

      • Avatar greginak in reply to Burt Likko says:

        It is amazing how long minimal can be in court. I, along with a bunch of other state employees, were sued by a former client. Even though we all had some sort of immunity due to our specific gov roles, so we can’t be sued, it took at least six months for all the motions to go through and be heard before the inevitable dismissal.Report

      • Avatar Burt Likko in reply to Burt Likko says:

        @greginak : Justice too long delayed feels like an injustice even to the winners. Balancing that imperative against the requirements of due process and with limited resources thanks to constricting budgets is a tricky balancing act.

        If I ever do make it on to the bench, improving this state of affairs will become my special mission.Report

      • Avatar Kim in reply to Burt Likko says:

        Yeah, I don’t care about “real time” i care about “judge time” because this is time he’s spending not redressing actual wrongs to actual people.
        (well, as always, within limits)Report

  2. Avatar NewDealer says:

    I am a much newer lawyer than you but I am also a strong advocate of plaintiff’s law and generally think that there are lots of hidden facts that get omitted from yuk yuk jokes including the famous/infamous Hot Coffee lawsuit.

    But sometimes it seems hard to determine the differences between a legitimate plaintiff’s lawsuit and/or class action and a silly one.

    Other nations seem better at stronger regulations to keep these kind of issues from arising. In the United States, we dislike regulation and need to rely on the plaintiff’s bar for accountability.Report

    • Avatar Burt Likko in reply to NewDealer says:

      …there are lots of hidden facts that get omitted from yuk yuk jokes including the famous/infamous Hot Coffee lawsuit.

      I’m sensitive about that, too. That’s why I bypassed newspaper and blog reports about this and dug around until I found the actual minute order straight from the Court. IIRC, the judge who decided this, now formally retired and serving off-and-on as a pro tem or on short-term assignments, was the first judge before whom I ever did a jury trial. He seems to enjoy a very good reputation with both sides of the bar in Sacramento.Report

    • Avatar Troublesome Frog in reply to NewDealer says:

      Would it help to shift the burden a little bit in these cases? Instead of “plaintiff pays the fees” we shift it to “plaintiff’s counsel pays the fees.” In theory, the person you’re hiring to file the lawsuit should a have a much better idea than you do about whether it’s going to get tossed.

      If an electrician says, “Sure, we’ll do it your way. It won’t burn the house down,” and it turns out to be a really dumb idea that burns your house down, “It was your fault for trusting my professional judgment,” doesn’t cut it.Report

      • IMO @troublesome-frog ‘s idea wouldn’t have helped a bit in this case. The plaintiff here was unrepresented.

        In other cases, maybe there would be a deterrent effect. But probably not much of one.Report

      • Avatar NewDealer in reply to Troublesome Frog says:

        @burt-likko

        If the plaintiff was unrepresented or representing himself, why do you feel the need to apologize for the profession? You can point out to people who sneer that this guy was not a lawyer and filed his own case and most lawyers would not take on this kind of case (probably). The courts are filled with all sorts of people who file lawsuits on their own without basis, you can even talk about why access to justice is important for the people with good cases who can’t afford lawyers and need to do it on their own.Report

      • The drunk guy in that party in my future (and maybe yours) isn’t going to distinguish between an attorney-filed suit and a pro per suit. He thinks like this: “Lawsuit bad! Lawsuit mean lawyer. Lawyer BAD!”

        Some of that’s going to be the Coors Light at work and some of it is going to be the claptrap he read on his seventeenth-FW chain e-mail but the rest of it is going to be sincere, hard-won ignorance. I shall be ready to meet him on his terms, with truthful statements he can comprehend and derive emotional satisfaction from.Report

      • Avatar Mike Schilling in reply to Troublesome Frog says:

        I’m presuming no lawyer would take it on contingency, because it’s an obvious loser. Would it be ethical for a lawyer to take it on a fee-for-service basis, knowing the almost certain result?Report

      • You’ve actually asked the pertinent question to the bulk of the OP, @mike-schilling . In California, Code of Civil Procedure section 128.7 requires that every party or attorney who presents a document to a court represents to the court that the arguments and legal theories contained therein are warranted by either existing law, or by a good-faith argument to extend the boundaries of existing law. Based on what I said above, it seems to me that this lawsuit would probably be justified as an argument to extend existing law. Other kinds of products carry warning labels by operation of law, without violating the First Amendment or its state level equivalent. So while the lawsuit is a loser the way the law exists right now, it seems possible to me to see a world where a lawsuit like this could be, potentially, a winner. That doesn’t mean that I would like to see the lot this way, but it’s not laughable that it could be that way at some point in the future. And a great many attorneys take chances on lawsuits that push the edge the way this one. This one pushed the edge and failed, but every once in a while, someone pushes the edge and succeeds. Those lawyers potentially wind up with large judgments under their belts.

        The answer to your question, then, is yes. I think it would be ethical to do this kind of work on behalf of a client, as long as the client understands the risks, costs, and likelihood of success, before paying that lawyer money to do this kind of risky work.Report

  3. Avatar Jaybird says:

    Anything that produces endorphins is potentially habit-forming/addictive.

    Perhaps a “warning: this product has been determined to produce endorphins” could be placed on everything that inspires (or could inspire) an measurable endorphin response in a subset of the society.Report

  4. Avatar Kazzy says:

    As I read this, I thought, “These cases only really bother me when it seems that the “wrong side” won.” So, I’m sort of impressed with myself that that is roughly where you land in your breakdown: why get upset about something that was ultimately of no consequence, as it appears this case was? It seems important to note that I am not well-equipped to definitively determine who is on the “wrong side” in every case.

    I do have concerns about what sometimes feels like our society’s increased reliance on the civil trial system to resolve any and all disputes. It concerns me on a number of levels. But I’m hard pressed to come up with a formal mechanism for addressing the trend, as it would ultimately pervert justice further by limiting people’s access to the system. The most I do is implore people to take greater personal responsibility whenever possible and to exhaust other options whenever possible before filing a lawsuit.

    Full disclosure: Aside from participating in class action suits that involved checking a box on a postcard mailed to me and getting a check for 97-cents 6 weeks later, I have once voluntarily entangled myself with the legal system to seek redress. And I only did so after the person I was dealing with ceased to respond to any and all communication attempts. The claim got her to involve her lawyer who spoke with my lawyer. My lawyer determined that my case was weak and not worth pursuing. So we dropped it. He could only make this determination after getting a more complete picture of what went on, which was impossible prior because the other person refused to communicate. Had I spoke with him from day one and said, “Here is what I’m saying and here is what she is saying,” he likely would have stopped in then. But because of her silence, all I went in with was what I was saying. And that was after doing everything else I knew possible save for showing up at her place of business, which seemed likely to escalate rather than deescalate the situation.Report

    • Avatar LeeEsq in reply to Kazzy says:

      The English speaking world has resorted to the civil trial system to resolve all disputes since the common law started to emerge in the Middle Ages. We and our ancestors have always been a litigous group. Its a lot more civil than blood feuds and duels and other informal means of settling disputes.Report

      • Avatar Kazzy in reply to LeeEsq says:

        @leeesq

        I’m not calling for a return to dueling. I’m just saying pick up the phone and try talking to the guy first.Report

      • Avatar Patrick in reply to LeeEsq says:

        I’ll call out for a return to dueling.Report

      • Avatar Jaybird in reply to LeeEsq says:

        We’ll need a label…Report

      • Avatar LeeEsq in reply to LeeEsq says:

        @kazzy, this did not work in the past and there is no reason to think it would work now. People have been suing each other over conflicts since the Middle Ages. If there is a case back log than we just need more judges to resolve them, something perfectly in line with even the strictest belief in limited government.Report

      • Avatar Kazzy in reply to LeeEsq says:

        @leeesq

        Many disputes will and should go to trial. But it is my understanding that far more things go to civil court now than did in the past. I’m sure some of that is good — more people with greater access and more justice — but some of it is probably bad. I’d want to address the bad, t’is all.Report

      • Avatar greginak in reply to LeeEsq says:

        Courts have become far more open to people representing themselves especially in civil cases. That does lead to a very low bar to cross to file a lawsuit. Lots of people can file a suit without having anything resembling a clue about what the law is and what the result they are looking for is. While i think its good people can access the Court without a lawyer in general, the rise of all sorts of weird/clueless/ignorant lawsuits is one those unintended consequences.Report

      • Avatar LeeEsq in reply to LeeEsq says:

        @greginak, its usually not a very good idea for people to represent themselves at court even if the stakes are small. They have no idea what they are doing and can cause a lot of damage to valid claim in many cases. Having to bail out a person that represented themselves pro se is not easy. For some simple actions like no-fault divorce without any disagreement than finding a way to provide access to the courts without lawyers is a good thing.Report

      • Avatar Mike Schilling in reply to LeeEsq says:

        An armed society is a polite society. (The quote isn’t just about having guns, it’s about being able to demand satisfaction of anyone by whom you feel disrespected.)Report

      • Avatar Murali in reply to LeeEsq says:

        Armless people can’t shake hands, or wave hello and good bye. That would be rude.Report

      • Avatar Mike Schilling in reply to LeeEsq says:

        You know, I’ve read that book three or four times, and somehow that never occurred to me.Report

      • Avatar Michael Cain in reply to LeeEsq says:

        An armed society is a polite society.

        Eventually, maybe. It would appear to take a long time in practice. From Wikipedia: “…during the reign of Henry IV, over 4,000 French aristocrats were killed in duels ‘in an eighteen-year period’ whilst a twenty-year period of Louis XIII’s reign saw some eight thousand pardons for ‘murders associated with duels’.” Also, doesn’t Heinlein sort of casually toss off the fact that the mortality rate amongst new arrivals ran as high as 90%? You’ve also got professional duelists who can be as rude as they want because no one is going to challenge them out of fear.Report

      • Avatar Mike Schilling in reply to LeeEsq says:

        Sure, the character who said that was being clueless. But 95% of the people who quote it have never read the book and have no idea that’s the case.Report

      • Avatar Damon in reply to LeeEsq says:

        We ought to bring back duels…

        It’ll thin the herd. Might just alter the trend we’re on to “idiocracy”.Report

    • Avatar Burt Likko in reply to Kazzy says:

      It would be great if people were more direct and forthright in communications with one another aimed at resolving disputes. There is a disincentive built in to the formal litigation process to that, however, which is that sometimes statements made along the way (especially apologies or other expressions of regret) are characterized as admissions of liability.

      This is a big part of why, for instance, a certain category of doctors are afraid to say the words “I’m sorry” to patients whose treatment outcomes are not favorable — they are afraid that if they way “I’m sorry” the patient, or rather the patient’s lawyer, will say “that was the doctor admitting that she screwed up, so she has to pay.” Laws and rules of evidence exist to mitigate this effect and protect certain kinds of statements (particularly those made in conjunction with offers to compromise the disputes) but the fact that it happens at all creates a chilling effect, and sometimes there really are admissions of liability that a jury ought to hear.

      As for the rest of this, see my footnote to the OP. Lawsuits are expensive and stressful, I know, but they’re way better than funerals.Report

  5. Avatar Mad Rocket Scientist says:

    SIHTAF?Report

  6. Avatar Mike Schilling says:

    Sex can be addictive too. Where should the warning label go?Report

  7. Avatar Mike Schilling says:

    There’s a rule(*) in software engineering that, the faster you find a bug, the less expensive it is to fix. If you introduce a bug but fix it before anyone else sees it, that’s very cheap. If you share it with other developers so that they run across it too, it’s wasting more people’s time (and time is money in at least three ways.) And if you ship it to customers so that it affects them, you’re costing yourself reputation in addition to the cost of tracking it down and creating and shipping a patch.

    So perhaps there’s a place to optimize this process by requiring someone representing himself to spend an hour with a legal consultant (payed for by the state) who can tell him “You have every right to sue, but you’re almost certainly going to lose and wind up owing court costs. So you’re looking at spending five figures, most of it going to the guys you’re suing, for the privilege of getting laughed out of court. Your call.”

    * Unlike GIGO, a real one.Report

    • So perhaps there’s a place to optimize this process by requiring someone representing himself to spend an hour with a legal consultant (payed for by the state)…

      This has possibilities. If the government-provided mechanism for dispute resolution has become so complex that it is necessary for an average person to hire a $300/hr specialist to navigate it, there’s an obligation to provide access to such specialists at no cost for at least an initial consultation. I wouldn’t have the state pay them, though. The specialists now control access over who can or can’t practice as a specialist; in return, require them to provide the initial consultation work pro bono. I’d make it mandatory. Each year, submit the list of people to whom you provided that service. If there aren’t enough people on your list, you don’t get to practice for pay the next year. Random audits to verify that the people really did consult you, and were treated in a reasonable way.Report

  8. I am wondering if video game companies can be held liable if they have logs of excessive times devoted to playing their games, yet they do not make efforts to warn the gamer and the public? For instance, a gamer playing 100 hours weekly is not healthy and when game companies have record of this, is there legal precedent for companies to do anything about this information?Report

  9. Avatar trizzlor says:

    I’m pretty surprised to hear that critics of frivolous torts are so common that it’s become typical party chatter. The only cases I can think of that are in the pop-culture like that are the McDonald’s coffee burn-victim (which was 20 years ago) and the John Edwards “Jacuzzi case” (which is probably only known to those weird people that read blogs). Is there like a pantheon of frivolous cases that you typically get accosted with at parties or is it a general “people be suin'” attitude? I’m not a lawyer but I do enjoy snappy rebuttals, so this is of personal relevance to me.Report

    • Avatar Troublesome Frog in reply to trizzlor says:

      I know of a bunch of ridiculous and abusive lawsuits that were filed, but I think it speaks pretty well of our system that they don’t usually get very far. I’ve only been in a working courtroom a few times, but I’ve never been in a courtroom where the judge was a buffoon who was easily swayed by nonsense. In my experience, if I smell bullshit, the judge usually started smelling it a few minutes earlier.Report

      • Actually quite typical. Which is what most people who gripe about “frivolous lawsuits” don’t seem to understand. Or, rather, they don’t want to understand it because then they couldn’t get to enjoy feeling outraged.Report

      • Avatar Mike Schilling in reply to Troublesome Frog says:

        Frivolous-sounding lawsuits make the news a lot because they can be described (often inaccurately) in a short paragraph and give the reader a good, healthy jolt of outrage. They also build the case for “tort reform”, which, added to deregulation, and the high threshold for finding their officers criminally liable, would completely immunize corporations from the consequences of their actions.Report

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