5 ms·

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 expensi

by 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.
- Silhouette 10y ago
  In practice, this is no different to having judges determine the amount of any damages awarded in a successful civil action or the amount of jail time or size of fine given to a convicted criminal. Making such assessments, taking into account the circumstances of each specific case, is a large part of the role of the judge in many legal systems.
  - protomyth 10y ago
    Amount of jail time doesn't really benefit donors, but amount of damages and who pays does.
    - Silhouette 10y ago
      Sorry, I don't follow. Does "donors" have some technical meaning here?
      - protomyth 10y ago
        Judges in the US run for office like politicians and thus have donors to their campaigns. Sorry for the confusion.
        Silhouette 10y ago
        Ah, I see. Thanks. What I don't see is how anyone who is inherently subject to popular opinion can possibly rule impartially in the interests of justice, but that's a different question.
        10y ago
tzs 10y ago
> Almost every country except the United States uses this system. Almost every country except the US uses agencies of their executive branch of government to enforce most labor, housing, discrimination, harassment, and civil rights laws. In the United States the enforcement of such laws is often split, with only very serious violations being handled by an executive agency and the more common violations simply creating a cause of action for a civil suit. Even if the amount a loser has to pay is limited to what they themselves paid for their own attorneys it would still greatly discourage many people from bringing suits over labor, housing, discrimination, harassment, and civil rights against anyone who has significantly more resources than they do. If they spend a lot to get a top attorney and lose then they have to pay a lot. If they spend little on an attorney to limit the maximum they might have to pay then they have to worry that the other side will out lawyer them.
- jules 10y ago
  The problem of being out-lawyered by a richer opponent exists in both cases, so I don't see how that's an argument for or against either system. The point about potentially discouraging lawsuits has a grain of truth in it, but not more than a grain. In the US you'd have to pay $X regardless of whether you win, and with the loser pays system you pay $0 if you win and $2X if you lose. It is at most a factor of two. The reality is that most people who can't afford $2X also can't afford $X. Consider what you get in return: (1) if you're quite sure you can win, you can sue at no cost (2) big companies can't just bully people into a settlement (like they attempted in this story). The net effect is that poor people who are clearly in the right gain the ability to sue, and rich entities who are clearly in the wrong lose the ability to extort settlements from poor people, but poor people who can afford $X but can't afford $2X lose the ability to sue if they aren't sure they can win. A very good trade-off if you ask me.
  - tptacek 10y ago
    His first paragraph explains why the public policy implications of loser-pays are different for civil law countries: far fewer controversies are handled in the court system, because the executive branch is given much more power.

by jules 10y ago

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.

Silhouette 10y ago
In practice, this is no different to having judges determine the amount of any damages awarded in a successful civil action or the amount of jail time or size of fine given to a convicted criminal. Making such assessments, taking into account the circumstances of each specific case, is a large part of the role of the judge in many legal systems.
- protomyth 10y ago
  Amount of jail time doesn't really benefit donors, but amount of damages and who pays does.
  - Silhouette 10y ago
    Sorry, I don't follow. Does "donors" have some technical meaning here?
    - protomyth 10y ago
      Judges in the US run for office like politicians and thus have donors to their campaigns. Sorry for the confusion.
      - Silhouette 10y ago
        Ah, I see. Thanks. What I don't see is how anyone who is inherently subject to popular opinion can possibly rule impartially in the interests of justice, but that's a different question.
        10y ago

tzs 10y ago

> Almost every country except the United States uses this system. Almost every country except the US uses agencies of their executive branch of government to enforce most labor, housing, discrimination, harassment, and civil rights laws. In the United States the enforcement of such laws is often split, with only very serious violations being handled by an executive agency and the more common violations simply creating a cause of action for a civil suit. Even if the amount a loser has to pay is limited to what they themselves paid for their own attorneys it would still greatly discourage many people from bringing suits over labor, housing, discrimination, harassment, and civil rights against anyone who has significantly more resources than they do. If they spend a lot to get a top attorney and lose then they have to pay a lot. If they spend little on an attorney to limit the maximum they might have to pay then they have to worry that the other side will out lawyer them.

jules 10y ago
The problem of being out-lawyered by a richer opponent exists in both cases, so I don't see how that's an argument for or against either system. The point about potentially discouraging lawsuits has a grain of truth in it, but not more than a grain. In the US you'd have to pay $X regardless of whether you win, and with the loser pays system you pay $0 if you win and $2X if you lose. It is at most a factor of two. The reality is that most people who can't afford $2X also can't afford $X. Consider what you get in return: (1) if you're quite sure you can win, you can sue at no cost (2) big companies can't just bully people into a settlement (like they attempted in this story). The net effect is that poor people who are clearly in the right gain the ability to sue, and rich entities who are clearly in the wrong lose the ability to extort settlements from poor people, but poor people who can afford $X but can't afford $2X lose the ability to sue if they aren't sure they can win. A very good trade-off if you ask me.
- tptacek 10y ago
  His first paragraph explains why the public policy implications of loser-pays are different for civil law countries: far fewer controversies are handled in the court system, because the executive branch is given much more power.