But we are, on a massive scale.

Anyway, more to the point, would loser pays deter some meritorious cases? Sure it would. That would be a byproduct of the system. The system we have now, on the other hand, has the huge byproduct of non-meritorious cases filed with impunity. Moreover, magnifying the complexity and scope of litigation imposes huge costs on defendants while often costing plaintiffs nothing at all — hence our insanely slow, inefficient, and expensive system of resolving civil disputes.

Loser pays isn’t the only possible solution. I think a better one is to completely re-engineer the rules of civil procedure and rules of evidence to make lawsuits far less expensive. We should have more summary adjudications, far less exchange of discovery, and depositions should be limited to 3 hours. And that’s for starters. I think in such a system loser pays would not be necessary.

No Name, there is a State Farm lobbyist who needs to speak with you on line one.

I met with a 82 year-old woman yesterday. Her chances of success at trial are, approximately, 100%. I guarantee you she would not have brought a claim if there was a .000000001% chance she was going to have to pay the defendant’s attorneys’ fees. Your theory works great in a lab. In the real world? Not so much?

No Name are you making this argument for criminals too? Why are we not paying their legal bills? Shouldn’t they be the FIRST to get compensated for criminal charges brought against them that could not be proven? Why does that not trouble you more?

You confuse “innocent” parties with the final outcome. Plaintiffs who should not get verdicts win at trial. Defendants who should not prevail, do prevail. If we go to loser pays, can we get rid of plaintiff’s burden of proof and just say whoever wins wins?

I don’t think many people are really pushing, as I said, loser pays. But, look, people smarter than I am support it. They realize the harm it would cause but decide the benefits outweigh the harm. I get that. But you just go on and pretend that this would be just great for everyone and would not have a chilling impact or meritorious cases.

Ohhh I dunno. Who decides that a bicycle or motorbike helmet that meets safety standards for impact is ‘safe’. Who decides that a vehicle that protects occupants crashing at a certain speed is ‘safe’. Who decides the survivability of airline seats? etc etc All of these may result in injury /death if they encounter forces greater than designed for and none are a guarantee of survival. Should all of these now be decided by jurys. If so, how is a manufacturer to decide how safe to make something? Crystal ball?

“aren’t you even more worried they are out voting for president and such”. Considering the standard of Presidents and Senators over the years, the only possible answer to that is – Hell Yes!.

As a plaintiff with a 70 or 80% solid case, do I really want to risk that 20-30% chance of a loss and end up owing the SOB that wronged me? Then again, I have a solid, but not guaranteed case – a good position to negotiate from. If the SOB makes a reasonable offer, or my shyster lawyer can negotiate one before filing a suit, why wouldn’t I take it? From the defendants side do they swing for the fences and go strait for the win by telling me “see ya in court buddy”, or does it game out that since they’re more likely than not to lose, ’tis better to make a settlement now and hold the costs down? The defendant’s negotiating position is clearly along the lines of “look Mr. No Name Guy plaintiff, we’re offering you a reasonable settlement here. If you choose to reject it and take this matter to court, you have a 30% chance of losing, in which case, our fees so far are so many thousands, which you’ll have to pay. Push us too hard, we’ll see ya there in front of the Judge and go for the win since it won’t be much worse anyways that you being unreasonable with that ridiculous demand and all, and we just might stick it to you in the process.”

With loser pays, both sides have an incentive to come to a settlement on meritorious or mostly meritorious claims. Defendants have no incentive to settle frivolous claims (they’ll take it to trial, prevail and recoup costs), and plaintiffs have every incentive to not file frivolous claims in the first place since they’ll be bankrupted by a loss.

And Mr. Miller – it really doesn’t make a hill of beans difference if it’s Navistar or Mom-n-Pop Corner Grocery Mart who is the defendant of a BS claim. The principal of the matter is the same – innocent parties shouldn’t be hauled into court, and if they are, should fully recoup their costs. And loser pays is not closing the courts at all: It’s giving plaintiffs a dose of the risk they can impose upon defendants at will (the current system is a classic case of moral hazard – no risk to the plaintiff filing frivolous claims, only potential reward).

Besides, you’re thinking like a lawyer since you appear to think the only way to settle matters is in a court of law. Court / lawsuits should be the last resort (like warfare), not the first. And everyone knows that legislatures are full of attorneys – why no, there is NO conflict of interest there AT ALL? Goose….golden egg….cartel pricing. Yep. To paraphrase, “War is too important to be left to the military men.” And law is too important to be left to the lawyers.

For the hypo you propose, experts testify and juries decide based on the evidence what is reasonable.

If juries are just so dumb that they can’t figure these things out when presented with the evidence, aren’t you even more worried they are out voting for president and such?

Just how exactly? Unless you are contending that Jurys always make the right call and cannot be subject to criticism, this is plainly the innocent party being found guilty for failing to design something to be ‘safe enough’. (If you do design a windshield to withstand a 2.5lb lump, it will not withstand a 3lb lump. So you design the windshield to withstand a 3lb lump, it will fail if someone lobs a 5lb lump. Where do you stop? Who defines what is ‘safe’ in this situation?)

I’m less worried Navistar which can absorb the costs – not with ease but we are talking relatively here. It is a bigger problem when you sue the mom and pop grocery store or something. I don’t have an answer. I hate that mom and pop guy paying when, if I was on a jury, I would have found him not liable. I just think it beats the alternative.