Comments on: Who Wins From Lawsuit Abuse? Hint: It’s Not You or Me.

By: Update: “Judge says perfume lawsuit can proceed”

Update: “Judge says perfume lawsuit can proceed” — Sun, 30 Nov 2008 18:36:27 +0000

[…] 27, opinion in PDF courtesy Bashman, h/t reader Vicky Gannon). We covered the case earlier here, here, and […]

By: Deoxy

Deoxy — Mon, 23 Jul 2007 14:26:41 +0000

“Nearly every state in the country already has a form of loser pays.”

And most of those, most of the time, resolve to “loser pays… NOTHING (if it’s the plaintiff).”

Go get some real data before you shoot your mouth off.

By: Matt

Matt — Mon, 23 Jul 2007 00:26:10 +0000

Nearly every state in the country already has a form of loser pays. What the corporate defense bar and the associated lobbyists want to do is federalize it.

By: Tom T.

Tom T. — Fri, 20 Jul 2007 05:34:33 +0000

I’m not suggesting that it’s a problem, but rather that it’s not as big an advantage as many proponents suggest. Most settlements would simply have the parties bearing their own legal costs. Moreover, to the extent that they are working on a contingent fee basis, plaintiff’s lawyers in this country already do work on a system that provides some of the incentives of loser-pays, in that they only get paid if they recover.

Also, note that a loser-pays system would presumably generate some new ancillary litigation, since the amount and reasonableness of the winner’s fees would likely be challenged in most cases that go to judgment.

By: Walter Olson

Walter Olson — Thu, 19 Jul 2007 14:29:10 +0000

>The thing to remember about the "loser pays" rule is that the vast majority of civil cases end in a negotiated settlement, where there isn't a winner or a loser. It is likewise true that the vast majority of civil cases end in a negotiated settlement in the legal systems of other advanced democracies, nearly all of which practice some version of loser-pays. So whatever practical problems may arise with loser-pays, this isn't one of them. As was noted earlier, the expected application of a fee-shifting rule casts a shadow on the negotiations which will tend to boost the settlement value of many well-founded claims while depressing the settlement value of many that are not so well-founded. So the high settlement rate actually illuminates one of the virtues of loser-pays, in that (assuming a 95 percent settlement rate) it deters wasteful behavior in nineteen other cases for every one case in which a judge actually has to spend time on a costs motion. At the risk of being self-promotional, readers interested in a fuller treatment of the subject might want to check out the resources here, here, and here.

By: Petri

Petri — Thu, 19 Jul 2007 13:00:37 +0000

So, if people think a loser pays system wouldn’t work because of the subjectiveness, why can’t other disincentives be enforced? If someone brings a tort lawsuit against you, for whatever reason, if it is found for the defendent why aren’t their legal reprercussions?

In the case of the pants why can’t they turn around and sue Pearson for malicious prosecution? If the verdict is in favor of the baseball coach why can’t he sue the parents for false accusation or slander?

The point is, that there should be some CONSEQUENCES for bringing litigation against another person. Something that makes a person stop and say, “Hmmm, how far do I want to take this?” If you bring litigation and you were wrong then it stands to reason that the suit shouldn’t have been brought. Why doesn’t that count as some form of dignitary tort under which the defendent can make claim for restitution?

By: E-Bell

E-Bell — Thu, 19 Jul 2007 12:25:19 +0000

Tom T., the same could be said about civil cases in the United States as well.

By: John

John — Thu, 19 Jul 2007 12:15:29 +0000

Tom:

That is true. However, if there was a loser pays system in place, the defendant might be more likely to “fight” the allegations rather than throwing money at it to make it go away.

By: Tom T.

Tom T. — Thu, 19 Jul 2007 02:59:56 +0000

The thing to remember about the “loser pays” rule is that the vast majority of civil cases end in a negotiated settlement, where there isn’t a winner or a loser.

By: Todd Rogers

Todd Rogers — Thu, 19 Jul 2007 02:06:52 +0000

I guess as an Ayn Rand-type, I have faith that the market will eventually make such cash-grabs unattractive or impossible. I presume most or at least the majority of this blog’s readers are supporters and proponents of “The Invisible Hand.” But inasmuch as it pains me like a paper cut on my tongue, I believe there is exactly one area that I can think of that direly needs a swift dose of governmental attention: tort reform.