Original post here: https://x.com/NuclearHerbs/status/1732933374455726400

Bonus #PulseChainLawSchool class:

OK, since I’ve been tagged a few times, I’ll provide my perspective. Let’s start from the beginning.

What is a tort? A tort is simply a civil wrong, for which you can seek civil damages. Remember that the state takes action in criminal cases and seeks imprisonment or fines for criminal action. Plaintiffs in civil lawsuits seek money as compensation for whatever injury (physical, reputation, etc) they sustained. Also, tort law is an entirely different animal from contract law. Torts and contracts were both a year long class in law school. I don’t have that kind of time here, so just believe me when I tell you this.

Torts can be intentional or unintentional. For example, if I punch you in the face, it’s assault (criminal), but also the civil tort of assault. Defamation is a tort. So is conversion (theft/embezzlement/etc), even though they can also be criminal acts. These are all intentional torts, because you don’t steal, punch someone, or defame someone by accident. You did all those on purpose.

Unintentional torts are things like negligence. Car accidents are probably the most common negligence tort you’ll see filed. You didn’t mean to cause a car accident, but maybe you got distracted when your girlfriend texted you a picture of her boobs, you stared at it too long, and you rear-ended the car in front of you. That’s an unintentional tort. You (or more likely your insurance company acting on your behalf) is coughing up for the doctor’s bills and chiropractic treatment plan they now have.

So what’s Richard talking about? Malicious torts like “tortuous interference” and similar claims are when someone takes deliberate actions to interfere with a contract between you and someone else or acts maliciously with respect to a business expectancy you have.

Example: I own a business making tortes (the tasty kind, not the unpleasant legal kind). I have a contract with a local restaurant to supply them with tortes. A rival business that makes other pastries decides to also start making tortes, and wants to eliminate the competition (me). We have the same supplier of chocolate, but my new rival buys 20x the chocolate that I do. Rival contacts the chocolate supplier and threatens to stop buying from them altogether if they don’t stop supplying me. That’s tortuous interference with my torte business.

Malicious torts occur every day. So why aren’t attorneys lighting cigars with $100 bills from this? Lots of reasons.

One of the most common is proving economic damages. This is not easy and usually requires you to retain an expert, which causes the other side to hire an expert to tell the court how stupid your expert is. This is referred to as the “battle of the experts.” Experts are expensive, because they’re experts. And as a thought exercise, try and estimate how much economic damage you *actually* sustained from someone’s interference with your business. Speculation isn’t allowed, there must be an actual basis for your economic damages. This is very difficult in practice.

Now, understand the difference between compensatory damages and punitive damages. Compensatory damages compensate you for your economic injury. For example, if you steal $50,000 from me, I can sue you for that $50,000. Awesome, right? Well, my attorney just took 30% of that, and I paid a few hundred more in legal costs (filing fees, service of process, etc). I’m not even getting what I lost back at the end of the day. And the case has to be worth enough for the attorney to even take it. If this is a $10k case, he’s probably not pursuing it, because he’s going to put more time and effort into it than he’ll recover. And that attorney already knows the types of cases that are likely to lead to a recovery and which aren’t.

For example, good luck trying to get someone to take a defamation case unless you’re famous, it’s clear as day that someone defamed you, you can prove a metric fuckton of economic injury, and the side that did you wrong has the money to pay a judgment if you get one. In over 20 years, I’ve never personally seen a successful defamation case involving normies. By successful, I mean someone actually saw cash at the end of a judgment. It’s so rare it could be an actual unicorn.

So that’s just regular damages, right? We’ve all heard about punitive damages. Those sound awesome!

Punitive damages are essentially economically punishing a shitbird for their REALLY bad behavior. But here’s the problem: They’re not available for most torts, and some states don’t allow them at all. Other states cap them at 2:1 or 3:1 ratios, so even if you get awarded $50,000 in compensatory damages, you’re sometimes limited to $100k or $150k in punitive damages, no matter how egregious the defendant’s conduct was.

They’re also pretty rarely awarded. I remember seeing a study a long time ago that said they were awarded in less than 5% of cases that went to jury trial. That number actually seems high to me, but I didn’t do the study. I refer to punitive damage claims as throwaway claims, because even though you have to plead them at the beginning of a case, you pretty much know they’re going nowhere almost every time.

Finally, and the single most important reason attorneys don’t file more malicious tort actions, is collectability. It makes zero sense to go through all the brain damage involved in a lawsuit only to win a $5M judgment you can’t collect on. This is why the most common torts (i.e. accidents) are filed against insurance companies. Because they can, and do, pay. I was co-counsel in a case once where we obtained a nearly $3M judgment against a business, but by the time that judgment was entered, it was bankrupt. There was nothing to collect against. So our client has a very pretty piece of paper she can hang on her refrigerator. And that’s all. Fortunately for us, there were other defendants who were able to cough up some dough so we, and our client, did get something out of it. Nothing even close to the big judgment though.

So go through the standard analysis:

Do I have enough evidence to prove this claim?

*This part is relatively straightforward*

Am I in a jurisdiction where I can request punitive damages or where they are capped, and is it worth it economically to pursue compensatory only?

*Now you’re filtering out some claims*

Is the defendant’s conduct so egregious that the court will agree that they need to be punished on top of them already recovering for their economic injury?

*This is where more cases get declined*

And finally, can the defendant pay if I win?

*The most important part* There are companies out there that compile reports on jury verdicts in various types of cases from all around the country. They sell these, so if you really want to cough up the money for it, you can. You’ll see the actual statistics involved in what types of tort claims were successful, what the plaintiff’s win/loss ratio at trial was, and how much was awarded. When you consider that the average plaintiff in a car accident case wins roughly half the time in a jury trial, you’ll understand why torts that are far more difficult to prove (like tortuous interference) aren’t aggressively pursued.

So while Richard Heart is right (again) in theory, it’s not as simple as running off and filing against every bad actor. Economics always wins in the end.