Losers Pay

kevinthenerd

Platinum Member
Jun 27, 2002
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I wish the United States had a "losers pay" tort system in which the loser of a legal case pays the court costs and representation fees (up to a certain point at least) for both sides. What do you think?
 

BrownTown

Diamond Member
Dec 1, 2005
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The problem comes in where you have cases that aren't just cut and dry. We would all like to see an end to frivolous lawsuits and this would likely stop them, but thing of the other consequences. If you have a person suing a large cooperation for a LEGITIMATE concern they can still lose, and then are they supposed to pay a million dollars for all the lawyers the big cooperation has on retainer or what? This would only work in a black and white universe and not a gray one. Although there should be more prosecution of frivolous cases, but you need to recognize the difference between a person who loses a lawsuit simply because they don't have enough proof or they don't have a good enough lawyer and someone who loses because they are creating a frivolous suit.
 

IronWing

No Lifer
Jul 20, 2001
68,855
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I think allowing judges to slap losers with court costs on a case by case basis makes some sense. I also think judges should be free to slap either or both sides for costs incurred by the court for BS cases. For example: corporations suing and counter suing each other over meritless patent-infringement cases where the whole purpose of the case is not to win but to slow down their competitors attempts to bring products to market.
 

ProfJohn

Lifer
Jul 28, 2006
18,251
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Originally posted by: ironwing
I think allowing judges to slap losers with court costs on a case by case basis makes some sense. I also think judges should be free to slap either or both sides for costs incurred by the court for BS cases. For example: corporations suing and counter suing each other over meritless patent-infringement cases where the whole purpose of the case is not to win but to slow down their competitors attempts to bring products to market.
Sounds like a good plan.
 

BoomerD

No Lifer
Feb 26, 2006
62,681
11,025
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I might support the idea in which the person who files the lawsuit has to pay the opponent's costs if the suit fails...Otherwise, lawyers could file suits for a myriad of things (think of all the ADA lawsuits) where the loser would have to pay not only the judgement, but costs and fees.
An example might be...if you own a 7-11 type of store and everything isn't printed in braille, you might be sued for failing to have the necessary access for a blind person. Under the ADA laws, you MIGHT lose that lawsuit, then not only might you be liable for the $2.5 million you were sued for, but copious court costs and lawyers fees as well.

However, if you were sued as in the above example and you won, then the opposing side should have to pay all costs and YOUR fees. THAT I'd support.

There are tons of cases in the courts today where unscrupulous lawyers are suing small businesses for "ADA violations" and offer to settle for a few thousand $$$...and since defending against such a suit would cost much more, many people just pay the blackmail...THOSE kinds of suits should be illegal to start with, but if you chose to take them to trial and you actually won the case, they should have to pay all costs and fees, NOT the defendant.
 

Rainsford

Lifer
Apr 25, 2001
17,515
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Originally posted by: Pabster
Tort Reform.

Unless I miss my guess, all you mean is capping damages awards targeted at major companies. Or at least that's what "Tort Reform" seems to mean when Republicans say it. Which is great and all, but I think it does way more to unnecessarily help companies that don't need it instead of fixing any real problems with the legal system.
 
Oct 30, 2004
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Unfortunately, there just isn't a good way to insure that justice is always done. Loser pays has advantages and disadvantages. One of the huge disadvantages is that it would have a chilling effect on lawsuits against corporations that have tremendous legal resources. Even if you have an excellent case, it's still very possible that you could lose as a result of having fewer resources than a large corporation. Then you'd find yourself with a $100,000 bill. Might as well build a bankruptcy court next to the trial court.

Perhaps a better system would be one where the loser has to pay a certain amount of money to the other party, say a couple thousand dollars. This way there would still be a deterrent against frivolous cases but not enough of a deterrent to where worthwhile cases would never be brought.

It's easy to say that you despise personal injury lawyers and the torts system without looking at the positive aspects of it, such as the effect it has in reducing negligence, workplace dangers, design defects, manufacturing defects, medical malpractice, corporate fraud, illegal discrimination, and sexual harassment, etc. Oh, did I mention that it also increases insurance companies' willingness to adhere to their insurance contracts?

It's easy to say that you despite personal injury lawyers and the torts system until you, yourself, really need it.
 

Pabster

Lifer
Apr 15, 2001
16,987
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Originally posted by: Rainsford
Unless I miss my guess, all you mean is capping damages awards targeted at major companies. Or at least that's what "Tort Reform" seems to mean when Republicans say it. Which is great and all, but I think it does way more to unnecessarily help companies that don't need it instead of fixing any real problems with the legal system.

Primarily in the medical arena, yes.

But Tort Reform can just as easily apply elsewhere.
 

kevinthenerd

Platinum Member
Jun 27, 2002
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Originally posted by: WhipperSnapper
Perhaps a better system would be one where the loser has to pay a certain amount of money to the other party, say a couple thousand dollars. This way there would still be a deterrent against frivolous cases but not enough of a deterrent to where worthwhile cases would never be brought.

Yeah, I like that. That's kinda what I mean when I said "up to a certain point." Someone who spends lots of money on the case is just making a progressive gamble: the more they spend, the better the payout odds, so in the American society of today with too many overpaid lawyers, they'll find a way around ANYTHING, and justice is trumped in favor of bullsh¡t technicalities. Perhaps this feed should represent the average individual's cost of litigation?
 

PingSpike

Lifer
Feb 25, 2004
21,729
559
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I actually liked that idea Edwards had in 2004, where the lawyers can only do like 5 really stupid cases and then they lose the right to file that type of case. Now hear me out, even if you hate Edwards! (He is pretty swarmy)

I think that basic idea, fleshed out, could work. You have to figure, that 90% of the lawyers are probably fairly normal...and then you've got a bunch of career ambulance chasers and "I stabbed myself in the eye with a pencil, where's my million bucks?" guys. Maybe you could give the judges discretion to stamp "totally retarded case, waste of court time" on each lawyers file when they file those kinds of cases. Then after say 5 of them or something, they're automatically disbarred. You have to have a reasonable minimum though to keep lawyers from not taking risky cases at all. And you could make it so each judge could only file one "retarded case" to any one lawyer, that way some judge with a vendetta couldn't do it every time the lawyer came before him. But if 5 or so judges or whatever label this guy nutwad then there's probably a good chance he is.
 

piasabird

Lifer
Feb 6, 2002
17,168
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The courts should just start refusing to hear more cases. The supreme court does not hear every case they are asked to hear.
 

SexyK

Golden Member
Jul 30, 2001
1,343
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Obviously a blanket "loser pays" rule would do more harm than good and will never be put in place. Seriously, if you make $25k a year but feel that you are being mistreated by your employer, which is a $10 billion corporation, would you risk filing suit if you knew that you would have to pay the fees for their expensive lawyers, who will most likely be so superior to any attorney you can afford that you are almost guaranteed to lose the case? Also, it would be no deterrent to huge corporations filing frivilous suits because they are the ones that can afford to pay the fees in the first place. What does $1M in fees mean to a $10B corporation if even a lost suit means $100M more in profits? Doesn't make sense and would cripple the system.

PS - in the system that exists today, there are situations where the judge has the discretion to make the losing party/attorney pay fees. See 28 USC 1927 and FRCP R. 54(d)(1).
 

Mursilis

Diamond Member
Mar 11, 2001
7,756
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Originally posted by: Skoorb
Has to be case by case.

That already exists - see for example Federal Rules of Civil Procedure, Rule 11. Most state courts have a similar rule about frivolous pleadings, with possible monetary sanctions. Judges are reluctant to invoke it, however.
 

ElFenix

Elite Member
Super Moderator
Mar 20, 2000
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Originally posted by: Mursilis
Originally posted by: Skoorb
Has to be case by case.

That already exists - see for example Federal Rules of Civil Procedure, Rule 11. Most state courts have a similar rule about frivolous pleadings, with possible monetary sanctions. Judges are reluctant to invoke it, however.

yup. Rule 13 here in Texas. they're more likely to invoke it if you're forcing someone to travel a long distance. texas also provides for attorneys fees paid by the loser, but mostly for contracts and similar actions.

costs of court are typically awarded, however, that is typically only filing and court reporter fees.



i dunno if i'm in favor of loser pays, every time, no questions asked. most likely there are quite a few cases where there *is* an injury but the evidence is shaky. and there are causes of action that are recognized in some jurisdictions but not others, so you can make a good faith argument that maybe the action should go forward, but the court ultimately does not recognize it. are those really frivolous?
 

Fern

Elite Member
Sep 30, 2003
26,907
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Originally posted by: ironwing
I think allowing judges to slap losers with court costs on a case by case basis makes some sense. I also think judges should be free to slap either or both sides for costs incurred by the court for BS cases. For example: corporations suing and counter suing each other over meritless patent-infringement cases where the whole purpose of the case is not to win but to slow down their competitors attempts to bring products to market.

I think we already have that ^.

It's also written into a lot of contracts, etc.

Fern
 

kevinthenerd

Platinum Member
Jun 27, 2002
2,908
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Originally posted by: PingSpike
I actually liked that idea Edwards had in 2004, where the lawyers can only do like 5 really stupid cases and then they lose the right to file that type of case. Now hear me out, even if you hate Edwards! (He is pretty swarmy)

I think that basic idea, fleshed out, could work. You have to figure, that 90% of the lawyers are probably fairly normal...and then you've got a bunch of career ambulance chasers and "I stabbed myself in the eye with a pencil, where's my million bucks?" guys. Maybe you could give the judges discretion to stamp "totally retarded case, waste of court time" on each lawyers file when they file those kinds of cases. Then after say 5 of them or something, they're automatically disbarred. You have to have a reasonable minimum though to keep lawyers from not taking risky cases at all. And you could make it so each judge could only file one "retarded case" to any one lawyer, that way some judge with a vendetta couldn't do it every time the lawyer came before him. But if 5 or so judges or whatever label this guy nutwad then there's probably a good chance he is.

This is the best idea I've heard in a long time.

Do you have any concept of how much cheaper insurance would be if there weren't so many people trying to get into the pockets of insurance companies? I think their willingness to pay out to deserving customers might increase if they weren't trying so hard to stay afloat amongst the frauds out there. (Then again, who says they'll pay any more anyway? They probably won't, but it's a warm and fuzzy idea.)

Edit: Air travel would be a lot cheaper too. I heard one time that a $90k aircraft, one of the cheapest you can buy, costs the consumer $60k in the liability insurance the manufacturer has to pay. There are a LOT of responsibilities put on the pilot, and I guess n00bs end up suing the biggest pockets when something goes wrong, even if the plane is old! This 67% figure is hard to believe, but if it's true, my God....

Edit again: "The Cessna Aircraft Company, Wichita, Kans., laid off 1,000 employees last year and no longer produces piston-driven aircraft. Why? The most expensive component of the airplane was liability insurance at $60,000 to $100,000 per unit." (These are 1986 dollars, too!)
from http://findarticles.com/p/arti...1154/is_v75/ai_4963244

Edit again: The General Aviation Revitalization Act of 1994 made an 18 year statute of limitations for aircraft, but this is still a long time in my opinion. Supposedly this problem is fixed, but it's a long way from perfect. Cessna, at least, got back to making planes.