6 ms·

"Loser pays" would go a long way, I think. Not being that familiar with the US system, what's the reasoning not to have this?

NTripleOne 10y ago
Some people would make a lot less money.
teej 10y ago
It's called the English Rule. People argue that implementing it could disincentivize people bringing forth valid cases and that it could lower the liklihood of settling, increasing legal and court costs for cases that do go through. I don't really have an opinion either way, those are just the common arguments against it.
- Silhouette 10y ago
  They're common arguments, but the predicted falling skies don't happen very often in practice. Meanwhile, there is far less of a problem with barratry under loser pays than the US system seems to have.
saint_fiasco 10y ago
If loser pays, poor people would be discouraged from even attempting to sue rich people. Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.
- kefka 10y ago
  It could be done that it is not loser pays by default. Instead, if a case is won, and the case was deemed frivolous, only then could loser-pays be enacted. But it still doesn't solve the idea that the "Law is more equal the more money you have." .
  - brianwawok 10y ago
    This is essentially how it works today, from my understanding. If you lose and your suit was 100% without merrit, you can be sued for lawyer fees. From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.
    - igravious 10y ago
      “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.
- merpnderp 10y ago
  This only favors rich people when the case is questionable. So it slightly favors them. The current situation massively favors rich people.
- jules 10y ago
  This comes up every single time, but it remains false. Loser pays does not mean that the loser has to pay a gigantic amount for the opponent's extremely expensive lawyers. Loser pays means that the judge determines what is a reasonable amount for the legal fees. Often the amount you have to pay for your opponent's lawyers is limited to what you paid for your own. So unless you hire extremely expensive lawyers yourself, you won't have to pay a huge amount if you lose. If a party wants a much more expensive defence they have to pay for that extra cost regardless of whether they win. Almost every country except the United States uses this system.
  - distances 10y ago
    Indeed. I'm living in a "loser pays" country, and it's definitely not a limitless tap. Judges quite often settle the loser's extra costs down to a more reasonable number.
    - talmand 10y ago
      Curious, what if the reasonable number is more than the lower could possibly pay? As in, they simply do not have the resources to pay it?
      - distances 10y ago
        I'd say it's just a debt as any other then. Not directly related, but personal bankruptcies aren't a thing here. If a debt can't be paid, it goes to recovery proceedings, and will stay like that until it expires in (generally) 15-25 years.
      - jsprogrammer 10y ago
        In some US jurisdictions you will eventually be sent to jail for failure to pay court fees.
  - golergka 10y ago
    > judge determines what is a reasonable amount for the legal fees That just gives financial unsupervised power to the judge, without any clear definition of involved terms. Which doesn't really sound like a good idea.
- codeflo 10y ago
  A small probability of a high (but known) fee is something that can in principle be insured against, no?
  - marcosdumay 10y ago
    And then insurance companies will become the toll collecting gate-keepers of yet another domain. This time the entire judicial system.
- cortesoft 10y ago
  How would a poor person be able to sue now? They don't have the money to hire a good lawyer. If the lawyer is working on contingency, then they are only going to take cases they are pretty sure they are going to win anyway, so they will still take cases where 'loser pays'. Granted, a contingency lawyer is probably going to need a higher guarantee of victory in a 'loser pays' system in order to agree to the case, but I don't think that would be a HUGE factor.
macspoofing 10y ago
It deincentives those who don't have deep pockets from asserting their rights through the judicial system.
c3534l 10y ago
You have that in some cases. My parents just went through that. A complete nonsense legal case (the other person stole tens of thousands of dollars in property and then sued them for demanding it back and spreading lies that the property was stolen from them). In the end, the judge ruled my parents were absolutely in the right and demanded court costs be paid for. Except, you know, that person didn't have any money and a nasty, multi-year long lawsuit is emotionally and financially devastating. There are also "anti-slap" laws sometimes where you can demand court costs paid for if the other person was suing you to try to suppress your freedom of speech. I'm sure that something could be done legally to curtail this atrocious behavior, but as the guy in the video mentioned, congress seems unwilling to take up the subject.
clavalle 10y ago
The one major pitfall of 'loser pays' is that it creates greater risk for legitimate complainants that might still lose. It is less direct but still favors entities that can absorb that risk. Even so, I think you are right and it could be helpful especially if there is some 'legitimacy threshold' that must be crossed before it is invoked to keep the actual cases that need to be heard and judged by legal experts to be teased apart fairly from being quashed prematurely.
mikeash 10y ago
Loser pays means that when an ridiculous East Texas judge and jury decide that a patent troll's claim is justified, the victim will not only have to pay damages and their lawyers, but the troll's lawyers too.
- distances 10y ago
  To be fair, I think this mistake in the US judicial system should be fixed separately.
  - mikeash 10y ago
    The overall point is that there will always be injustice, and loser pays can easily magnify it rather than reducing it. Even if you fix East Texas, there will be many others. I'm sure you can construct it such that there's a net gain, and maybe even a simple "loser always pays" system qualifies, but it's tough to figure out. In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
    - Silhouette 10y ago
      In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
      - mikeash 10y ago
        Then I guess either that's not what people mean when they say that the US should adopt a "loser pays" system, or they're unaware that the US already does this.
ogreveins 10y ago
As long as it's no more than the price of the cheaper legal team this method would work. That way poorer people who have been wronged are not heavily deterred from filing suit.
DocG 10y ago
Also, depositing 10% of the sued ammount would clean the place right up and bring ammouts to a more reasonable level. If I am correct, this is how it works in my country.

NTripleOne 10y ago

Some people would make a lot less money.

teej 10y ago

It's called the English Rule. People argue that implementing it could disincentivize people bringing forth valid cases and that it could lower the liklihood of settling, increasing legal and court costs for cases that do go through. I don't really have an opinion either way, those are just the common arguments against it.

Silhouette 10y ago
They're common arguments, but the predicted falling skies don't happen very often in practice. Meanwhile, there is far less of a problem with barratry under loser pays than the US system seems to have.

saint_fiasco 10y ago

If loser pays, poor people would be discouraged from even attempting to sue rich people. Even if the poor person has a legitimate claim, there is a small probability that the rich person will win with their superior lawyers and the poor person will be bankrupted by the legal fees. Since they will know that from the beginning, they won't sue in the first place.

kefka 10y ago
It could be done that it is not loser pays by default. Instead, if a case is won, and the case was deemed frivolous, only then could loser-pays be enacted. But it still doesn't solve the idea that the "Law is more equal the more money you have." .
- brianwawok 10y ago
  This is essentially how it works today, from my understanding. If you lose and your suit was 100% without merrit, you can be sued for lawyer fees. From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.
  - igravious 10y ago
    “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.
merpnderp 10y ago
This only favors rich people when the case is questionable. So it slightly favors them. The current situation massively favors rich people.
jules 10y ago
This comes up every single time, but it remains false. Loser pays does not mean that the loser has to pay a gigantic amount for the opponent's extremely expensive lawyers. Loser pays means that the judge determines what is a reasonable amount for the legal fees. Often the amount you have to pay for your opponent's lawyers is limited to what you paid for your own. So unless you hire extremely expensive lawyers yourself, you won't have to pay a huge amount if you lose. If a party wants a much more expensive defence they have to pay for that extra cost regardless of whether they win. Almost every country except the United States uses this system.
- distances 10y ago
  Indeed. I'm living in a "loser pays" country, and it's definitely not a limitless tap. Judges quite often settle the loser's extra costs down to a more reasonable number.
  - talmand 10y ago
    Curious, what if the reasonable number is more than the lower could possibly pay? As in, they simply do not have the resources to pay it?
    - distances 10y ago
      I'd say it's just a debt as any other then. Not directly related, but personal bankruptcies aren't a thing here. If a debt can't be paid, it goes to recovery proceedings, and will stay like that until it expires in (generally) 15-25 years.
    - jsprogrammer 10y ago
      In some US jurisdictions you will eventually be sent to jail for failure to pay court fees.
- golergka 10y ago
  > judge determines what is a reasonable amount for the legal fees That just gives financial unsupervised power to the judge, without any clear definition of involved terms. Which doesn't really sound like a good idea.
codeflo 10y ago
A small probability of a high (but known) fee is something that can in principle be insured against, no?
- marcosdumay 10y ago
  And then insurance companies will become the toll collecting gate-keepers of yet another domain. This time the entire judicial system.
cortesoft 10y ago
How would a poor person be able to sue now? They don't have the money to hire a good lawyer. If the lawyer is working on contingency, then they are only going to take cases they are pretty sure they are going to win anyway, so they will still take cases where 'loser pays'. Granted, a contingency lawyer is probably going to need a higher guarantee of victory in a 'loser pays' system in order to agree to the case, but I don't think that would be a HUGE factor.

macspoofing 10y ago

It deincentives those who don't have deep pockets from asserting their rights through the judicial system.

c3534l 10y ago

You have that in some cases. My parents just went through that. A complete nonsense legal case (the other person stole tens of thousands of dollars in property and then sued them for demanding it back and spreading lies that the property was stolen from them). In the end, the judge ruled my parents were absolutely in the right and demanded court costs be paid for. Except, you know, that person didn't have any money and a nasty, multi-year long lawsuit is emotionally and financially devastating. There are also "anti-slap" laws sometimes where you can demand court costs paid for if the other person was suing you to try to suppress your freedom of speech. I'm sure that something could be done legally to curtail this atrocious behavior, but as the guy in the video mentioned, congress seems unwilling to take up the subject.

clavalle 10y ago

The one major pitfall of 'loser pays' is that it creates greater risk for legitimate complainants that might still lose. It is less direct but still favors entities that can absorb that risk. Even so, I think you are right and it could be helpful especially if there is some 'legitimacy threshold' that must be crossed before it is invoked to keep the actual cases that need to be heard and judged by legal experts to be teased apart fairly from being quashed prematurely.

mikeash 10y ago

Loser pays means that when an ridiculous East Texas judge and jury decide that a patent troll's claim is justified, the victim will not only have to pay damages and their lawyers, but the troll's lawyers too.

distances 10y ago
To be fair, I think this mistake in the US judicial system should be fixed separately.
- mikeash 10y ago
  The overall point is that there will always be injustice, and loser pays can easily magnify it rather than reducing it. Even if you fix East Texas, there will be many others. I'm sure you can construct it such that there's a net gain, and maybe even a simple "loser always pays" system qualifies, but it's tough to figure out. In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. Maybe it's just a matter of calibrating that judicial sense properly. Or maybe that's just a cop-out on my part to push the thinking onto somebody else.
  - Silhouette 10y ago
    In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages. In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
    - mikeash 10y ago
      Then I guess either that's not what people mean when they say that the US should adopt a "loser pays" system, or they're unaware that the US already does this.

ogreveins 10y ago

As long as it's no more than the price of the cheaper legal team this method would work. That way poorer people who have been wronged are not heavily deterred from filing suit.

DocG 10y ago

Also, depositing 10% of the sued ammount would clean the place right up and bring ammouts to a more reasonable level. If I am correct, this is how it works in my country.