Loser pays in Canada too. There's way less lawsuits but even if your in the right you might not sue, simply because you can't afford to lose.
Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
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Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#32I just found this comment from Walter Bright on a previous thread on this topic. I think it's brilliant:
Loser pays can work when the amount the loser is liable for is the minimum of his legal fees or his opponent's legal fees. That puts the maximum he is liable for under his own control.
I love this idea, as it completely prevents the scenario where a well-financed plaintiff uses the most expensive lawyers and runs up a huge bill, just to add to the defendant's risk and encourage a premature settlement. Under this rule, if you want to spend a bunch of money on good lawyers to improve your chances of winning the case at all, go ahead, but you won't collect more in fees by doing it, unless your opponent does the same (as they presumably will if they can afford to).
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#33Earlier quoted context omitted.
While 'loser pays' might benefit your particular case, it's easy to imagine an equal number of scenarios where a guilty corporate defendant uses the threat of running up huge legal fees to discourage valid lawsuits against it. The result is a windfall for corporations with no net improvement in actual justice. To put it another way, it decreases the likelihood of frivolous plaintiffs but increases the likelihood of f…
>To put it another way, it decreases the likelihood of frivolous plaintiffs but increases the likelihood of frivolous defendants. An acceptable trade-off in my view. The defendant is by definition not the one starting the court case so its more difficult to abuse. e.g. I can go onto the street & hit 10 guys with a baseball bat. Compare that with waiting on the street to get punched in the face (unlikely to happen) &…
If a corporation operates a big oil platform in a reckless manner and causes billions in damages, who is "starting the court case?" Corporations are far more likely than individuals to cause widespread harm, and they're also far more likely to use a cost/benefit analysis rather than morality to guide their decision-making. After all, contrary to the what the law says they're not people---individual responsibility is too dissipated in a big corporation for individual morality to influence behavior.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#34Earlier quoted context omitted.
That's why there are lawyers who take cases on contingency. And while some of them are quick-buck artists just looking for a quick settlement, most are looking for real cases with a high likelihood of success, with plaintiffs who simply couldn't afford to bring their solid case otherwise.
So what's your example of a scenario in which it's worth it for a corporate defendant to spend a lot on legal fees but in which a plaintiff can't find a lawyer who judges the chances of recovering his own fees acceptably likely to take the case?
"Loser pays" isn't aimed at changing lawyer behavior, it's aimed at changing plaintiffs' behavior. If the case is good the plaintiff will always find a lawyer, the question is whether the plaintiff can stomach the risk of loss even if he has a case that he's 90% sure of winning. Would you take a gamble where if you win you get $2M but if you lose you pay $100K, even if the chance of winning is 90%? It's not an easy decision if your net worth is less than that $100K.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#35Earlier quoted context omitted.
At least in Germany, what is a reasonable fee is strictly regulated and tied to the total value disputed. At the very least, you'll know the cost (roughly) at the outset of the case. Good luck trying that kind of regulation in the US.
@vannevar you have obviously never been sued or threatened on a meritless claim by a multi billion $ company. Loser pay is a significant equalizer because let's say the case is speech related, the ACLU will defend you all day long necuase their attorneys get paid in the end. I imagine other attorneys would take up your defense for similar reasons...
How often is an individual sued by a corporation on a free speech case, compared to the number of times individuals sue corporations because they've been harmed? I'd guess that ratio is something on the order of 1000 to 1 or more in favor of individuals suing corporations. Unless you're Oprah, it's pretty unlikely that a corporation is ever going to sue you for something you say.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#36Look at who pays the bills at Reason. That's who would benefit from any policy recommendations they have. "Fair" has nothing to do with it.
If you want to make it "fair" then reform the rules to where no party to a case can spend more than the other. If I bet my friend that I and a friend could beat him and a friend a two-on-two basketball, and he shows up with Kobe Bryant, would that be fair? What if that bet stated that the loser pays the bills for dinner at the winner's choice of restaurant? Is that fair? Yes, it would be a stupid bet to make. But the proposed policy change makes that bet no longer a choice but a matter of law.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#37I just found this comment from Walter Bright on a previous thread on this topic. I think it's brilliant: Loser pays can work when the amount the loser is liable for is the minimum of his legal fees or his opponent's legal fees. That puts the maximum he is liable for under his own control. I love this idea, as it completely prevents the scenario where a well-financed plaintiff uses the most expensive lawyers and runs…
Exactly.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#38Earlier quoted context omitted.
So what's your example of a scenario in which it's worth it for a corporate defendant to spend a lot on legal fees but in which a plaintiff can't find a lawyer who judges the chances of recovering his own fees acceptably likely to take the case?
"Loser pays" isn't aimed at changing lawyer behavior, it's aimed at changing plaintiffs' behavior. If the case is good the plaintiff will always find a lawyer, the question is whether the plaintiff can stomach the risk of loss even if he has a case that he's 90% sure of winning. Would you take a gamble where if you win you get $2M but if you lose you pay $100K, even if the chance of winning is 90%? It's not an easy d…
If there's a 90% chance of winning, maybe the lawyer would be willing to pay the defendant's legal fees if he lost.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#39Earlier quoted context omitted.
So what's your example of a scenario in which it's worth it for a corporate defendant to spend a lot on legal fees but in which a plaintiff can't find a lawyer who judges the chances of recovering his own fees acceptably likely to take the case?
"Loser pays" isn't aimed at changing lawyer behavior, it's aimed at changing plaintiffs' behavior. If the case is good the plaintiff will always find a lawyer, the question is whether the plaintiff can stomach the risk of loss even if he has a case that he's 90% sure of winning. Would you take a gamble where if you win you get $2M but if you lose you pay $100K, even if the chance of winning is 90%? It's not an easy d…
If there's a 90% chance of winning, maybe the lawyer would be willing to pay the defendant's legal fees if he lost.
Maybe. How about a 65% chance? Should we discourage that plaintiff if his lawyer declines to back him financially? After all, lawyers are lawyers, not bankers.
Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.
#40I just found this comment from Walter Bright on a previous thread on this topic. I think it's brilliant: Loser pays can work when the amount the loser is liable for is the minimum of his legal fees or his opponent's legal fees. That puts the maximum he is liable for under his own control. I love this idea, as it completely prevents the scenario where a well-financed plaintiff uses the most expensive lawyers and runs…
This is an appealing idea at first glance, but it really doesn't accomplish anything for plaintiffs represented on contigency. They get charged nothing if you take the rule literally, and if you use the plaintiff's attorney's costs they could often be as high as the defense costs. The rule still punishes indigent plaintiffs who bring lawsuits in good faith to litigate genuine disputes.