Howard Berman: “It is not simply the losing of the case. You can lose by winning under the Goodlatte scenario. That is why I prefer the…”

“It is not simply the losing of the case. You can lose by winning under the Goodlatte scenario. That is why I prefer the McHale approach instead of the Goodlatte scenario, and let me explain why. A situation, a diversity case, four or five corporate defendants, a plaintiff brings an action, he seeks, based on medical injuries and loss of wages and pain and suffering, to collect a million dollars. Defendant three of the five defendants offers $80,000. He has no other offers. He thinks $80,000 will not even cover reimbursement for one-third of his medical bills. He refuses that offer. The case goes to trial. He gets a judgment; he gets a judgment for $1 million, exactly what he sought in his initial pleadings. However, under the elimination of join liability, that is coming in the very next bill, the judge apportions, and the jury apportions, liability where the one defendant who made an $80,000 offer is found only to be 7.5 percent liable and, therefore, only obligated to pay $75,000. Now, a huge amount of that particular defendant's attorneys' fees are shifted to the plaintiff even though he got exactly what he wanted, because it was not until the time of trial that he had a sense of how the different negligent defendants would be apportioned. You lose when you win under the Goodlatte scenario. It is not even about frivolous cases, not about nonmeritorious cases.…”