In the case of environmental litigation, the pro bono lawyer who is successful is paid by the taxpayer, so there is no pro bono unless they lose.

I would be against laws restricting these practices unless the notion of standing were reexamined and broadened. It excludes too many people now (as in the case about that California anti-gay-marriage proposition that its authors were found not to have standing to defend).

Is there the potential for abuse? Sure, but so is the alternative where wealthy litigants (such as insurance companies) can put the screws to the injured who may be out of work and desperate.

Litigation funding generally sucks, due to very high fees. But it also, to some degree, levels the playing field.

On the generalities, Mr. Olson sees huge potential for misconduct and chicanery, and a whole world of needless and punitive litigation. I see the great majority of lawsuit loans and litigation funding as having very little effect on the extent of litigation, except to enable plaintiffs with meritorious cases to properly pursue them in light of the time and expense necessary for litigation, which ordinary plaintiffs often can’t bear.

On the specifics, I see Mr. Olson’s concern about “candor to the tribunal” being the same as my concern regarding client control of the litigation. If the litigation funder has simply put forward capital for costs in exchange for a portion of the proceeds, there’s no big issue. If, however, the plaintiff has effectively assigned the claim away to the litigation funder, then we do indeed have a problem with the nominal plaintiff not actually being the real party in interest.

That’s my concern with the Hogan case. It does not look like a typical case worthy of litigation financing, not least because defamation/privacy lawsuits are very rarely funded at all because of their extreme risk, and also because the funder in question is not someone typically engaged in litigation financing, and who has apparent motivation for maintaining an unnecessary claim beyond the point where it should have resolved. On the flipside, however, the extraordinary size of the jury verdict would suggest that perhaps the funder here knows better than most, and correctly identified a high value privacy case that was worthy of pursuit.

All of which is to say, this particular case certainly raises my eyebrows just the same as Mr. Olson’s. But it is an outlier, and I don’t think it should be used as a vehicle to impair typical plaintiffs’ pursuit of appropriate redress in the courts.