3 ms·

In France, this is left the the judge's appreciation. "Condamnation aux dépens", literally "penalty of the costs", is a complementary, optional penalty which fo

by fab13n 13y ago

In France, this is left the the judge's appreciation. "Condamnation aux dépens", literally "penalty of the costs", is a complementary, optional penalty which forces to foot part or all of the winning party's legal costs. The merits of the case and the proportionality of the winning party's legal expenses are taken into account. In practice, it works, together with a couple of anti-ambulance-chasing provisions (e.g. "no gain no fee" contracts are illegal).

bradleyjg 13y ago
There are rules that allow US Federal judges to do the same, but the default expectation is that in most litigation each side will pay their own attorneys fees. In certain narrow areas, such as civil rights litigation, the presumption goes the other way. In my experience most judges are very reluctant to order fee shifting in the absence of a specific statute because, among other reasons, it can be grounds for a malpractice action against the attorneys.
rayiner 13y ago
Loser-pays and a ban on contingency cases is basically a guarantee that consumers will never be able to sue a large corporation to vindicate their rights. It's basically carte blanche for a big corporation to respond to any litigation by hiring the biggest most expensive legal team, adopting a scorched earth litigation policy, and threatening the plaintiff with the resulting bill. Now, that doesn't make it a bad policy per se. It works fine in France, where the government is much more willing to enforce consumer rights using regulatory means. It wouldn't work so well in the U.S. where the government leaves a lot of that kind of enforcement to private litigation.
- fab13n 13y ago
  Again, in France it's not "_loser pays_". It's "_judge determines who pays, and does so in such a way as to deter financial bullying_". The very reason why we have judges, rather than only cops, is that mechanically applying rules doesn't work. In most non-trivial cases, we need a human being who defends the sometimes subtle spirit of the law. That's one of those cases.

by fab13n 13y ago

bradleyjg 13y ago

There are rules that allow US Federal judges to do the same, but the default expectation is that in most litigation each side will pay their own attorneys fees. In certain narrow areas, such as civil rights litigation, the presumption goes the other way. In my experience most judges are very reluctant to order fee shifting in the absence of a specific statute because, among other reasons, it can be grounds for a malpractice action against the attorneys.

rayiner 13y ago

Loser-pays and a ban on contingency cases is basically a guarantee that consumers will never be able to sue a large corporation to vindicate their rights. It's basically carte blanche for a big corporation to respond to any litigation by hiring the biggest most expensive legal team, adopting a scorched earth litigation policy, and threatening the plaintiff with the resulting bill. Now, that doesn't make it a bad policy per se. It works fine in France, where the government is much more willing to enforce consumer rights using regulatory means. It wouldn't work so well in the U.S. where the government leaves a lot of that kind of enforcement to private litigation.

fab13n 13y ago
Again, in France it's not "_loser pays_". It's "_judge determines who pays, and does so in such a way as to deter financial bullying_". The very reason why we have judges, rather than only cops, is that mechanically applying rules doesn't work. In most non-trivial cases, we need a human being who defends the sometimes subtle spirit of the law. That's one of those cases.