6 ms·

Would be nice to have a 'loser pays' court system for civil trials. These kinds of trolls would go away quickly.

strictnein 10y ago
Yes, like most of the rest of the world. But the trial lawyers send tons of money to one of the parties, so our current legal system stays in place.
- adventured 10y ago
  That's correct. The Republican party has been trying to pass a loser pays system since the early 1990s at least, when they included it in their so called "Contract with America." The fear mongering has been going on ever since: http://reason.com/archives/1995/06/01/civil-suits http://reason.com/archives/1995/06/01/civil-suits
  - vinay427 10y ago
    Relevant portion from the Wikipedia article on "Contract with America." > An act to institute "Loser pays" laws (H.R.988, passed 232-193, March 7, 1995), limits on punitive damages and weakening of product-liability laws to prevent what the bill considered frivolous litigation (H.R.956, passed 265-161, March 10, 1995; passed Senate 61-37, May 11, 1995, vetoed by President Clinton [2]). Another tort reform bill, the Private Securities Litigation Reform Act was enacted in 1995 when Congress overrode a veto by Clinton.
  - takno 10y ago
    I recall an 8 year stretch during that period when the Republican party held the presidency, and longer periods when they have controlled the house. It doesn't seem to be an especially high priority for them.
    - strictnein 10y ago
      The blocker was always the Senate when Republican presidents were in power.
      - panglott 10y ago
        Well, except for 2002-2006 when the Republicans controlled all three branches.
        briandh 10y ago
        They only had a simple majority in the Senate.
johngalt 10y ago
The problem with 'loser pays' is that it can actually encourage frivolous litigation like this. Often there are civil suits where the defendant and plaintiff agree that there are some valid claims, but they disagree on the specifics and amount of the damages. If the plaintiff knows that eventually they will 'win' their fees and costs regardless, they have an incentive to disagree with settlement offers. It looks like this: You sell me a broken printer for $30 and I hire a lawyer to sue you for $30,000. I refuse to settle for less and tie things up as long as possible in court. Eventually I 'win' with a court finding of $30 in damages. Then you pay my attorney $50,000 in fees and costs because you 'lost'. Edit: Possible improvement would be to pay based on the distance between the award and settlement offers?
- nimblegorilla 10y ago
  That isn't how it always works. In some countries when the other party agreed to pay $30 up front then they would be considered the winner. You would pay their legal fees for trying to extort $27,970.
  - TheCoelacanth 10y ago
    Who pays if the actual damages are somewhere in the middle?
    - cortesoft 10y ago
      You could do it like baseball does arbitration. Each side presents a figure they think is fair, and a judge picks one of the two (she can't pick somewhere in the middle, she has to pick one or the other). That way, each side is encouraged to present a reasonable amount, otherwise the other sides value will be chosen.
      - mywittyname 10y ago
        Ah, the old trick my mom used for dividing goods: one kid makes the division, the other makes the first choice.
MichaelBurge 10y ago
'loser pays' has a couple disadvantages: * It encourages people to pick the best, most expensive lawyer in town for every case no matter the expense, because your opponent will be picking up the tab. * It discourages people from using the courts to resolve their disputes, which means people without resources tend not to get any justice. If, say, your landlord steals your $1500 security deposit for no good reason, are you really willing to risk $5000 in lawyer's fees over $1500? Of course not, you'll let it slide and some little injustice will remain unresolved. * It makes the courts a weapon of last resort rather than the standard dispute-resolution mechanism. You used to see people dueling in the streets to resolve their problems. The disadvantage of course is that people can raise disputes with you, and you have to answer them much the same way you can't ignore filing your taxes.
- objclxt 10y ago
  A lot of those points are simply not true in a loser pays system, such as the UK or Australia. > It encourages people to pick the best, most expensive lawyer in town for every case no matter the expense, because your opponent will be picking up the tab. The court determines whether fees being claimed by the winner are reasonable. Bar associations (or the local equivalent) publish fee scales, and the courts will often require winners to cover a portion of their expenses if they determine them to be excessive. If a litigant was found to be deliberately using the most expensive legal representation in an attempt to bankrupt the other party they'd almost certainly be sanctioned. > If, say, your landlord steals your $1500 security deposit for no good reason, are you really willing to risk $5000 in lawyer's fees over $1500? Most loser pays systems offer similar small claims courts, which don't require lawyer. So your $1,500 dispute would go there, rather than to a trial court. > It makes the courts a weapon of last resort rather than the standard dispute-resolution mechanism You have misunderstood what the courts are. They are a measure of last resort. Ask any judge or lawyer: courts expect parties in a trial to attempt to settle. That includes going to non-binding arbitration and making reasonable settlement offers. Courts take a very dim view of parties that don't attempt to settle. In fact, if the loser made a pre-trial offer that was higher than the amount eventually awarded, the courts will often make the winner pay some or all of their own costs. This is on the basis the winner has wasted the court's time: they had a better offer, and they refused to take it.
hibikir 10y ago
I like the Spanish mechanism: Loser pays is possible, but it is definitely not the rule. For the loser to have to pay costs, you have to show that the suit was filed in bad faith, typically with a completely baseless claim. This occurs a good enough percentage of the time to deter people from suing at random, but it's not in any way guaranteed to happen every time you lose: There are plenty of civil suits are there where both sides have legitimate arguments, and where everyone eats their own expenses. There's also rules about what reasonable legal costs are, to deter major bill padding.

Yes, like most of the rest of the world. But the trial lawyers send tons of money to one of the parties, so our current legal system stays in place.

adventured 10y ago
That's correct. The Republican party has been trying to pass a loser pays system since the early 1990s at least, when they included it in their so called "Contract with America." The fear mongering has been going on ever since: http://reason.com/archives/1995/06/01/civil-suits http://reason.com/archives/1995/06/01/civil-suits
- vinay427 10y ago
  Relevant portion from the Wikipedia article on "Contract with America." > An act to institute "Loser pays" laws (H.R.988, passed 232-193, March 7, 1995), limits on punitive damages and weakening of product-liability laws to prevent what the bill considered frivolous litigation (H.R.956, passed 265-161, March 10, 1995; passed Senate 61-37, May 11, 1995, vetoed by President Clinton [2]). Another tort reform bill, the Private Securities Litigation Reform Act was enacted in 1995 when Congress overrode a veto by Clinton.
- takno 10y ago
  I recall an 8 year stretch during that period when the Republican party held the presidency, and longer periods when they have controlled the house. It doesn't seem to be an especially high priority for them.
  - strictnein 10y ago
    The blocker was always the Senate when Republican presidents were in power.
    - panglott 10y ago
      Well, except for 2002-2006 when the Republicans controlled all three branches.
      - briandh 10y ago
        They only had a simple majority in the Senate.

johngalt 10y ago

The problem with 'loser pays' is that it can actually encourage frivolous litigation like this. Often there are civil suits where the defendant and plaintiff agree that there are some valid claims, but they disagree on the specifics and amount of the damages. If the plaintiff knows that eventually they will 'win' their fees and costs regardless, they have an incentive to disagree with settlement offers. It looks like this: You sell me a broken printer for $30 and I hire a lawyer to sue you for $30,000. I refuse to settle for less and tie things up as long as possible in court. Eventually I 'win' with a court finding of $30 in damages. Then you pay my attorney $50,000 in fees and costs because you 'lost'. Edit: Possible improvement would be to pay based on the distance between the award and settlement offers?

nimblegorilla 10y ago
That isn't how it always works. In some countries when the other party agreed to pay $30 up front then they would be considered the winner. You would pay their legal fees for trying to extort $27,970.
- TheCoelacanth 10y ago
  Who pays if the actual damages are somewhere in the middle?
  - cortesoft 10y ago
    You could do it like baseball does arbitration. Each side presents a figure they think is fair, and a judge picks one of the two (she can't pick somewhere in the middle, she has to pick one or the other). That way, each side is encouraged to present a reasonable amount, otherwise the other sides value will be chosen.
    - mywittyname 10y ago
      Ah, the old trick my mom used for dividing goods: one kid makes the division, the other makes the first choice.

MichaelBurge 10y ago

'loser pays' has a couple disadvantages: * It encourages people to pick the best, most expensive lawyer in town for every case no matter the expense, because your opponent will be picking up the tab. * It discourages people from using the courts to resolve their disputes, which means people without resources tend not to get any justice. If, say, your landlord steals your $1500 security deposit for no good reason, are you really willing to risk $5000 in lawyer's fees over $1500? Of course not, you'll let it slide and some little injustice will remain unresolved. * It makes the courts a weapon of last resort rather than the standard dispute-resolution mechanism. You used to see people dueling in the streets to resolve their problems. The disadvantage of course is that people can raise disputes with you, and you have to answer them much the same way you can't ignore filing your taxes.

objclxt 10y ago
A lot of those points are simply not true in a loser pays system, such as the UK or Australia. > It encourages people to pick the best, most expensive lawyer in town for every case no matter the expense, because your opponent will be picking up the tab. The court determines whether fees being claimed by the winner are reasonable. Bar associations (or the local equivalent) publish fee scales, and the courts will often require winners to cover a portion of their expenses if they determine them to be excessive. If a litigant was found to be deliberately using the most expensive legal representation in an attempt to bankrupt the other party they'd almost certainly be sanctioned. > If, say, your landlord steals your $1500 security deposit for no good reason, are you really willing to risk $5000 in lawyer's fees over $1500? Most loser pays systems offer similar small claims courts, which don't require lawyer. So your $1,500 dispute would go there, rather than to a trial court. > It makes the courts a weapon of last resort rather than the standard dispute-resolution mechanism You have misunderstood what the courts are. They are a measure of last resort. Ask any judge or lawyer: courts expect parties in a trial to attempt to settle. That includes going to non-binding arbitration and making reasonable settlement offers. Courts take a very dim view of parties that don't attempt to settle. In fact, if the loser made a pre-trial offer that was higher than the amount eventually awarded, the courts will often make the winner pay some or all of their own costs. This is on the basis the winner has wasted the court's time: they had a better offer, and they refused to take it.

hibikir 10y ago

I like the Spanish mechanism: Loser pays is possible, but it is definitely not the rule. For the loser to have to pay costs, you have to show that the suit was filed in bad faith, typically with a completely baseless claim. This occurs a good enough percentage of the time to deter people from suing at random, but it's not in any way guaranteed to happen every time you lose: There are plenty of civil suits are there where both sides have legitimate arguments, and where everyone eats their own expenses. There's also rules about what reasonable legal costs are, to deter major bill padding.