You don't need to be 100% sure of winning, only more sure than the person suing you. Well, that's probably saying too much. Let's look at a few scenarios and

You don't need to be 100% sure of winning, only more sure than the person suing you. Well, that's probably saying too much. Let's look at a few scenarios and see what comes out. In this case big means someone with lots of money, little has not so much. Being in the right means being more likely to prevail in a trial - this could be represented by a percentage. We also need to consider that there are people who are not very realistic in assessing the strength of their case. Let's call them irrational. That gives us the following possibilities: A. big v. big B. little v. little C. big v. little 1. big is clearly in the right (>90%) 2. bis is probably in the right (>50%) 3. little is probably in the right (>50%) 4. little is probably in the right (>90%) a. party in the wrong is rational b. party in the wrong is irrational So which combination benefits more from loser pays? My contention would be that any situation involving 1 or 4 very likely settles right away and those with 2 or 3 very likely don't get brought up in the first place. This is already much longer than I meant to get into but I think there would be an overall benefit in moving to loser pays.