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Can someone please explain to me (as a non-american) why the losing party does not have to pay legal fees? In Israel if someone sues you and they lose they have

• saagarjha 7y ago
  Well, one drawback to the losing party paying legal fees is that it disincentivizes "small" parties from suing larger ones, since they are more likely to lose and less likely to be able to pay.
  • gmueckl 7y ago
    Germany has fixed attorney fees to solve this problem. There are other measures to reduce this problem. I don't understand them fully, so I won't be more specific. But it kind of works out in the end. You can't just hire an oversized army of lawyers and dump the bill entirely on the losing party.
    • mr__y 7y ago
      It seems that Poland has a similar solution* - there are fixed rates and a losing party covers the fees up to that fixed rates. That is anyone is free to hire a lawyer at any rate but the loosing party will have to cover the costs but not more that those fixed rates, so effectively those rates are an upper treshold for repaying legal costs. Additionally a judge may decide that a loosing party does not have to cover those costs - depending on their financial situation (this is a bit more complicated, but since I am not a lawyer I don't know the details here) *I'm quite sure that this solution in Polish legal system was modelled after the German law.
  • TomMarius 7y ago
    As was said, the countries where the losing party pays usually have tables where you can find the legal fees and the maximum amounts that the losing party has to potentially pay.
    • mcv 7y ago
      It would make sense if the amount you have to pay for the other party's legal fees can never be more than what you paid for your own legal fees. That way, a small party fighting a big one will at worst double their legal costs (though that can still be a lot), and if they're sure they will win, they can afford to spend whatever is necessary to get there, because it's still going to be less than what Big Corp is going to spend. But that's also the big risk: if they're sure they're going to win, spend big to ensure that victory, and then still lose, then they lose far more than they can possibly afford. It's a very risky gamble.
  • tomxor 7y ago
    If true then it highlights a deeper problem in your justice system (litigation power outweighs correctness)
    • icebraining 7y ago
      The "more likely to lose", yes; but even if the system was perfectly fair, the result is not always obvious beforehand (otherwise we wouldn't need a trial in the first place!), and the risk may be too high for a poor litigant.
    • mannykannot 7y ago
      And in the other way, the power of money outweighs correctness (to which we should add, in both cases, "some of the time.") This is a genuinely hard problem with no clear optimal solution.
  • cynusx 7y ago
    It does, but it also creates an investment opportunity for cases where the chance of winning is high. The problem with each side paying their own fees is that there is no such beneficial investment scenario for the party that eventually wins. it's all pure losses and then you win but are not really compensated for the financial cost of defense.
• navigatesol 7y ago
  >why the losing party does not have to pay legal fees? Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees? Believe it or not, the last thing we want is to discourage people from thinking they have the ability to sue people who harm them. And suing for legal fees is also common practice. Patent trolls are a problem with the law, not the legal system. They are also entitled to sue people violating their patents.
  • dragonwriter 7y ago
    > Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees? That's a separate issue from whether the loser pays: even with automatic loser pays (or in the situations where the loser pays even in the American system) limitations to “reasonable” costs (or actual specific legislated caps) are possible.
• Slartie 7y ago
  Even if you are ultimately paid back, you first have to win the case. Until that happens, you have to foot the mounting legal bills. And there’s a plethora of possibilities for lawyers (especially in the US legal system, but others offer some as well) to drag the case on almost indefinitely and rack up costs. Documents seem to be one of the usual ways (demanding lots of documents from the other side, or flooding them with truckloads of largely irrelevant documents). Simply making sure the case takes as long as possible to be concluded and costs as much as possible works in practically any legal system as a way to gain an unfair advantage if you have more money to burn than your opponent.
• squiggleblaz 7y ago
  It's not obvious that the losing party should have to pay the legal fees. (By that, I take it you mean lawyer's cost, not court costs.) To a measurable extent, success is based on ability to pay. If an individual is sued by someone with corporate counsel or a relatively poor person is sued by an incredibly rich person, should they be made to pay twice? It also would invite too many disputes into the courts, since an aggrieved party could feel it's almost free - the person who hurts them to the tune of a couple of hundred dollars will have to pay tens of thousands and they get nothing. It is possible that some disputes have a genuine good party and a genuine dodgy party, but in many cases they're just people who life happened to. The loser should compensate the other party but not necessarily get punished. If the loser was being malicious, they should be made to pay. But we shouldn't assume the loser is malicious, just that they lost. It seems to me if you want the loser to pay, you'd have to create a regulated system for costs in order for them to be fair. A clever lawyer might have a way to take additional payments, but they'd have to be outside of the system, not recoverable by the court. But doesn't that end up in exactly the same situation as before?
  • zaarn 7y ago
    In Germany a regulated system of costs exists, the amount of compensation you pay to the winning party is capped and uses a fixed hourly rate equal for both parties.
    • nannal 7y ago
      So you have the same problem, a rich person can pay over that hourly rate and have better representation and a poor person is capped at that rate.
      • anoncake 7y ago
        No. They can't. That's the point.
      • moccachino 7y ago
        In a way, but the downside to the losing party is limited. Also in (at least some of) these systems, it is not an automatic order for the losing party to pay, the court can decide to order it or not. I don't think there really is any feasible way to prevent rich people and companies to have access to more/better representation.
• bloak 7y ago
  Losing party paying everything is perhaps even worse than each party paying its own costs. The correct solution, as implemented in some countries, is that if a party was behaving unreasonably, for example by refusing a fair offer to settle out of court, then that party pays the reasonable costs of the other party.
  • zaarn 7y ago
    Easy solution; fix attorney fees to a reasonable value, then the payout is done adjusted for 1 attorney. So if you loose against a large company, the worst that happens is you pay twice that of your lawyer; once for your lawyer, then for theirs. That's the solution in germany and it works quite beautifully (sans people intimidating others into believing they'd loose).
    • squiggleblaz 7y ago
      So first thing here is - you accept the principle that the winner should pay their own costs. Since as you say, if the company has five lawyers, they have to pay for four of them. So there's no real difference. If they hire ten lawyers, and your lawyer says "I need help to do it" you're screwed - either you pay the extra lawyer out of your own pocket, or you ask your lawyer to do the best job they can do. The difference is just how much shit flows in when you open the gate - not how much shit is there, or which direction it flows. In Germany you have to buy insurance against getting sued. I mean, you could call that an indication of a beautifully working system, but I call it an utter failure.
      • atq2119 7y ago
        > In Germany you have to buy insurance against getting sued. That is incorrect, and what's more is that I have no idea where you're getting this from (it's possible that certain professions are required to buy extra insurance, but the only universally mandatory insurance in Germany is the health and social insurance).
      • zaarn 7y ago
        You don't have to buy insurance against getting sued at all. There is no law that forces you to buy one and few people have it.
• howard941 7y ago
  In the US sometimes the losing party does have to pay ("The British Rule"), but as you note the American Rule is the default for most situations. The British Rule tends to close the door to the courthouse for many aggrieved individuals and bad situations, as would prohibiting contingency fees and class actions. You haven't advocated those latter limitations but they're often fellow travelers in British Rule arguments.
• goodcanadian 7y ago
  You've had plenty of responses, but I think a nuance is being missed. In many cases, it is not clear who will win. That is the whole point of the courts: to decide on the cases that are not immediately obvious. The big player has enough money to take the chance and try the court. Even if they lose and have to pay the winner's fees, it would not be a disaster. The small player, however, if forced to pay the winner's fees, can't afford to take the chance of a loss even if they have a very strong case. By having each side pay their own fees except in truly egregious cases, it gives the small players slightly better access to the courts than they might otherwise have.
  • JediWing 7y ago
    The solution, as I see it, is to fix the misaligned incentives. A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous. To fix this, it ought not be the losing plantif who has to pay, but rather in frivolous cases, the losing lawyer ought to pay. Frivolity can be determined by the judge or jury (perhaps only after unanimous verdicts) This way, it is the responsibility of the lawyer to take on only cases which have real legal merit, and stop digging for gold. Edit: I've held this idea for a while and don't see many shortcomings. I would love to see where it falls short if someone disagrees.
    • lawlessone 7y ago
      > but rather in frivolous cases, the losing lawyer ought to pay. nobody would take jobs then unless the chance of winning was 99%. The lawyer would also in those case being getting charged money to work.
      • JediWing 7y ago
        If the finding of frivolity was separate from the verdict, though, it could work. Set the standard as, on a unanimous verdict for the defendant, the jury may decide the case was frivolous on the standard that "no reasonable jury would find the facts as applied to the law to render a verdict in favor of the plantif". It would cause greater scrutiny but cases that have merit would still go forward. Edit: Also the lawyer would not being charged money to work, they would be getting fined for wasting the court and jury's time. That's like saying a contingency lawyer is working without pay: well yeah, but it's factored into the cost of business. There are still chances for high payout but now there is also a much needed downside.
• jcranmer 7y ago
  According to https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3748&context=lcp https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article..., the American Rule essentially came about as follows. Originally (in the 18th century), legal fees were regulated by the state (/colony), and these fees would be borne by the losing party. But these fees were rather miserly, so the legal profession argued for the ability to charge what they wanted as a consequence of freedom of contract. By the mid-19th century, the courts relented and permitted this, but cost recovery was limited to the miserly fees permitted by legislation, and it was felt unjust and unfair to have the losing party bear costs they had no control over. After some vacillation, the courts eventually agreed that costs could be recovered, but only if the legislature rather explicitly allows for it in law or statute.
• pron 7y ago
  > In Israel if someone sues you and they lose they have to pay (up to a reasonable amount) for your lawyer and legal representation. It's very common in Israel for the judge to rule that each side cover their own legal expenses (e.g. if the ruling is in favor of the defendant, but the lawsuit isn't frivolous).
• dragonwriter 7y ago
  > Can someone please explain to me (as a non-american) why the losing party does not have to pay legal fees? The losing party doesn't automatically have to pay legal fees (but may be ordered to in certain cases) because, the theory is, that there is a space where a party is clearly wrong to even litigate, and a space where a party, even if they are legally in the wrong, is not so clearly wrong so that it is wrong for them to litigate to determine their rights, and that justice is best served when potential litigants with a reasonable case are not discouraged from litigating to determine their rights. > The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it The alternative to that is to increase the ability of a wealthier party to commit a wrong and leverage the irreducible uncertainty of a human justice system to intimidate a less-wealthy party to accept the outcome and not litigate, because of they are unsuccessful they will have a guaranteed high additional cost on top of the sunk cost of the harm done.
• S_A_P 7y ago
  I used to think that loser pays was a magic bullet for this, but I think that it actually makes it even more difficult for the "small guy" knowing that they may have to pay Goliath's team of 1000/hr lawyers if they lose. If the goal is to reduce the caseload in the courts, loser pays is effective. If the goal is for the reasonable access to everyone of the courts, the current system is (I hesitate to say this, but) better. I also think that when you have a class of worker(lawyers) who's job is to read/interpret/test the boundaries of/defend the law of the land, you will always find some people who figure out ways to game the system.
  • jessaustin 7y ago
    Reducing the number of cases probably should be a goal, and the reasonable way to accomplish that would be for judges to be much more aggressive in dismissing bullshit. Some judges are satisfied with lifetime appointments to their current courts. If they aren't, either because they seek appointment to a higher court or because they face reelection campaigns, they have to worry about pissing off their biggest donors. Those, of course, are the lawyers who appear in their courts, who have very little interest in reducing caseload.
    • gamblor956 7y ago
      Local judicial positions are not lifetime positions. They are generally elected or wanted to terms. Only federal judges and (in most states) the highest state court judges have lifetime terms.
    • pdonis 7y ago
      > Reducing the number of cases probably should be a goal, and the reasonable way to accomplish that would be for judges to be much more aggressive in dismissing bullshit. An even better way would be to eliminate laws that let people be hauled into court when they have done no harm. A huge example is the war on drugs: criminalizing mere possession of drugs, with no requirement that the person has to have harmed anyone, means a huge number of drug cases cluttering up the courts that shouldn't even have gone to court at all.
  • 7y ago
• SkyBelow 7y ago
  Court access being determined by financial resources immediately delegitimizes the court. The solution is to ensure fair access without costs and ban any influence beyond that. Imagine if we forced a child to pay a police officer before the police would investigate claims of abuse.