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Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

reason.com

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Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#41

Post by a5seo »

vannevar wrote: post #35
a5seo wrote: post #29

Earlier quoted context omitted.

@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.

Look through any local ACLU chapters' case list and you'll find plenty. Or read http://reason.com/blog/2008/12/10/slapp-silly -- that is an archetypal case. Environmental activists, whistleblowers, online reviewers. Lawsuits are the perfect way to shut them up, no matter how much of a effing farce they are. And for every 1 case that actually gets filed as a suit, my guess is there are hundreds of c&d letters sent.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#43

Post by davidw »

psadauskas wrote: post #13
davidw wrote: post #11

Pretty much everything I've ever seen from "reason.com" is material promoting a libertarian viewpoint. Not that there's anything wrong with that, but it's pretty much just politics.

Probably because its the website for a libertarian magazine? They don't even pretend that's not the case, unlike something on Fox News... From the about page: Reason is the monthly print magazine of "free minds and free markets." It covers politics, culture, and ideas through a provocative mix of news, analysis, commentary, and reviews. Reason provides a refreshing alternative to right-wing and left-wing opinion maga…

The point being, for those who missed it that this site is not for the discussion of politics. There are plenty of other places to trot out the same old tired discussions.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#44

Post by yason »

Compared to the US, loser-pays would also cut cown the number of lawsuits because plaintiffs would think twice or thrice before suing. That would definitely be a good thing: a court is an awfully frictional and expensive way to settle disputes and should rightly be reserved to the most pressing ones that seem to warrant the corresponding financial investments. Anything that can be settled outside of courts should be.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#46

Post by Derbasti »

tzs wrote: post #12

Comparison between the US and Europe in this area is close to meaningless, because of fundamental differences in how the two tend to view the roles of the judicial and executive branches of government in the enforcement of laws. The US has a greater tendency, particularly in the areas of civil rights but also torts in general, of structuring the law so it gives the injured party a private right of action, which they…

So you are saying the US gives even more power to the powerful and wealthy (e.g. corporations) and even less power to the poor regardless of who is right. One might argue that a court should exist for deciding about justice, not budget.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#47

Post by kalleboo »

B_ wrote: post #36

Look 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…

Quoth the article: «A common fear about loser-pays is that the side who loses a routine dispute will get handed a bill for 10,000 hours from Cravath, Swaine & Moore. But European courts are well aware of the danger that successful litigants will overinvest in their cases and gold-plate their fee requests. They carefully control the process to prevent that danger, giving the losing side a full chance to dispute a fee award, requiring that work be reasonable and necessary, providing that elite lawyer rates not be paid if a Main Street lawyer could have done the job, and so forth.»

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#48

Post by yummyfajitas »

mhb wrote: post #38
vannevar wrote: post #34

Earlier quoted context omitted.

"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.

He almost certainly would. Many lawyers already work for contingency fees - this isn't much different, except the potential downside is slightly larger.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#49

Post by vannevar »

vannevar wrote: post #21
davidw wrote: post #11

Pretty much everything I've ever seen from "reason.com" is material promoting a libertarian viewpoint. Not that there's anything wrong with that, but it's pretty much just politics.

"Loser pays" doesn't seem consistent with libertarian philosophy, in that it advocates government interference in what should be a private economic matter: how one pays for one's legal representation. It is consistent with corporatism, however, which I suspect is closer to Reason's true philosophy.

Would the downvoters care to explain the glowing praise for European-style regulation in a publication supposedly devoted to libertarian ideals? What is the argument for consistency there?

Downvoting a legitimate argument (as opposed to say, an ad hominem attack) without supporting it with your own counter-argument is laziness.

Re: Loser-Pays makes lawsuits fairer in Europe. It could work here, too.

#50

Post by vannevar »

a5seo wrote: post #41
vannevar wrote: post #35

Earlier quoted context omitted.

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.

Look through any local ACLU chapters' case list and you'll find plenty. Or read http://reason.com/blog/2008/12/10/slapp-silly -- that is an archetypal case. Environmental activists, whistleblowers, online reviewers. Lawsuits are the perfect way to shut them up, no matter how much of a effing farce they are. And for every 1 case that actually gets filed as a suit, my guess is there are hundreds of c&d letters sent.

Oh, I agree such suits exist, though SLAPP suits against individuals are still pretty rare. I'm just saying that I believe the ratio of ordinary suits by individuals against corporations is several orders of magnitude more common.
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