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.
...except the potential downside is slightly larger.
That's quite an understatement. If the plaintiff's attorney spends half of what the defense spends, he's looking at tripling his exposure if he loses. That's an enormous difference.
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…
They carefully control the process...
Meaning they heavily regulate what can be charged. Why is Reason so enthusiastic about regulating attorneys but screams bloody murder if the government tries to regulate doctors or the energy industry?
I 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.
I think powerful plaintiffs frivolously suing indigent ones is far more common than the other way around, and a much bigger problem. Without some kind of loser-pays it's always possible for wealthier individuals to sue poorer ones and win a war of attrition.
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.
I think powerful plaintiffs frivolously suing indigent ones is far more common than the other way around, and a much bigger problem. Without some kind of loser-pays it's always possible for wealthier individuals to sue poorer ones and win a war of attrition.
>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…
Such a corporation as you describe will act that way (recklessly) regardless of whether its loser pays or not. Besides, its unreasonable to expect such a mechanism (loser pays) to catch cases involving billions in damage & unethical corporations. i.e. Just because there are cases that loser pays will not prevent doesn't mean loser pays is a bad idea.