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American courts should have a "Loser pays" rule, and stricter standards for determining what is a frivolous lawsuit warranting additional penalties for the file

American courts should have a "Loser pays" rule, and stricter standards for determining what is a frivolous lawsuit warranting additional penalties for the filer. American jurisprudence has always favored making sure "everyone gets their day in Court" to the point where trolls and professional litigants are ruining things.

korzun 10y ago
That sounds great on paper, but in reality, all that does is prevent legitimate cases from advancing. It's already expensive as it is to take legal action against an offending party. You are assuming that every lawsuit is a money grab; it's quite the opposite.
- bmcusick 10y ago
  And … this is why we get strategic lawsuits. I'm not assuming any such thing. I'm an attorney and understand the tradeoffs and I think society would be better off if these sorts of cases didn't waste everyone's time.
hackuser 10y ago
What happens if your small business sues Google? Right or wrong, you are betting the business on that case. If you lose, Google's legal costs will consume your entire business. That said, it's hard for your small business to sue Google anyway.
- bambax 10y ago
  It shouldn't be based on actual costs but on an averaged estimation; and it shouldn't be automatic but left at the discretion of the court, specifically to punish frivolous litigation.
- fgonzag 10y ago
  I've always had an idea that whoever loses a civil suit pays the other party the lower of the legal costs of both parties. So if small company A fights big company B, small company A would only have to pay twice it's legal costs, even if megacorp decides to spend smallcorp's yearly sales in the defense. If megacorp sues a small company, then small company can decide to fight it if they think they have a case and have enough reserves (which are easy to estimate since they will be based on 2xs your legal costs if you lose, 0 if you win).
  - terragon 10y ago
    That seems like a good idea and I can't come up with any obvious way in which it can be exploited.
  - pkolaczk 10y ago
    Yes, your idea is even better than what we have in Poland. In Poland we basically have "loser pays" but the legal costs returned by the loser are limited by law and typically depend on the type of the case and the amount of money requested in the lawsuit. These limits are lower than the typical cost of good legal companies. Therefore even if a big company with expensive lawyers wins, it will not get back all of its legal costs.
- bmcusick 10y ago
  Except that my rule makes it easier to sue Google if you have a good case. The whole point of "Loser Pays" is to filter out the frivolous, weak, and marginal cases. But it also makes it easier to file the strong and meritorious cases, because you know you're going to win (eventually), and they'll pay for it. Of course because the strong cases get settled out of Court, the overall effect is that a lot fewer cases will go to Court at all and this is generally a good thing (IMO). The Court system is overburdened, which means it can take months or years for meritorious cases to just get a hearing and trial. Prisoners can languish for years in prison without conviction of guilt, just awaiting trial. Furthermore you have to think about the unseen costs. All those businesses that are never formed in the first place because of these legal tactics. My guess is that small businesses that are put out business by lawsuits are outnumbered 100:1 or more by potential businesses that never get past the planning stages.
  - hackuser 10y ago
    > if you have a good case. Your confidence in the legal process' accuracy in sorting good cases from bad is greater than mine. Any case is risky, IMHO. > The Court system is overburdened I agree; it should be much better funded. It's denial of justice to everyone.
quadrangle 10y ago
Besides what others said, "loser pays" gives incentive to increase total legal costs where people who think they have a strong case where the other will pay could spend absurdly on the suit. And it reinforces sunk cost too. Once you're into the case, you better do everything it takes to win at all costs (since you won't face the burden of any of those costs if you do win).
- pkolaczk 10y ago
  That's why there should be a limit on the costs that are returned by the loser, based on the average estimation. In Poland there is no point in spending absurdly, because you won't get anything over the limit back, regardless of who wins.

korzun 10y ago

That sounds great on paper, but in reality, all that does is prevent legitimate cases from advancing. It's already expensive as it is to take legal action against an offending party. You are assuming that every lawsuit is a money grab; it's quite the opposite.

bmcusick 10y ago
And … this is why we get strategic lawsuits. I'm not assuming any such thing. I'm an attorney and understand the tradeoffs and I think society would be better off if these sorts of cases didn't waste everyone's time.

hackuser 10y ago

What happens if your small business sues Google? Right or wrong, you are betting the business on that case. If you lose, Google's legal costs will consume your entire business. That said, it's hard for your small business to sue Google anyway.

bambax 10y ago
It shouldn't be based on actual costs but on an averaged estimation; and it shouldn't be automatic but left at the discretion of the court, specifically to punish frivolous litigation.
fgonzag 10y ago
I've always had an idea that whoever loses a civil suit pays the other party the lower of the legal costs of both parties. So if small company A fights big company B, small company A would only have to pay twice it's legal costs, even if megacorp decides to spend smallcorp's yearly sales in the defense. If megacorp sues a small company, then small company can decide to fight it if they think they have a case and have enough reserves (which are easy to estimate since they will be based on 2xs your legal costs if you lose, 0 if you win).
- terragon 10y ago
  That seems like a good idea and I can't come up with any obvious way in which it can be exploited.
- pkolaczk 10y ago
  Yes, your idea is even better than what we have in Poland. In Poland we basically have "loser pays" but the legal costs returned by the loser are limited by law and typically depend on the type of the case and the amount of money requested in the lawsuit. These limits are lower than the typical cost of good legal companies. Therefore even if a big company with expensive lawyers wins, it will not get back all of its legal costs.
bmcusick 10y ago
Except that my rule makes it easier to sue Google if you have a good case. The whole point of "Loser Pays" is to filter out the frivolous, weak, and marginal cases. But it also makes it easier to file the strong and meritorious cases, because you know you're going to win (eventually), and they'll pay for it. Of course because the strong cases get settled out of Court, the overall effect is that a lot fewer cases will go to Court at all and this is generally a good thing (IMO). The Court system is overburdened, which means it can take months or years for meritorious cases to just get a hearing and trial. Prisoners can languish for years in prison without conviction of guilt, just awaiting trial. Furthermore you have to think about the unseen costs. All those businesses that are never formed in the first place because of these legal tactics. My guess is that small businesses that are put out business by lawsuits are outnumbered 100:1 or more by potential businesses that never get past the planning stages.
- hackuser 10y ago
  > if you have a good case. Your confidence in the legal process' accuracy in sorting good cases from bad is greater than mine. Any case is risky, IMHO. > The Court system is overburdened I agree; it should be much better funded. It's denial of justice to everyone.

quadrangle 10y ago

Besides what others said, "loser pays" gives incentive to increase total legal costs where people who think they have a strong case where the other will pay could spend absurdly on the suit. And it reinforces sunk cost too. Once you're into the case, you better do everything it takes to win at all costs (since you won't face the burden of any of those costs if you do win).

pkolaczk 10y ago
That's why there should be a limit on the costs that are returned by the loser, based on the average estimation. In Poland there is no point in spending absurdly, because you won't get anything over the limit back, regardless of who wins.