Every time I see another example of frivolous litigation threats like this, I feel like one of the biggest shortcomings of the U.S. justice system is not enough pain inflicted on frivolous litigators.
This goes for patent trolling, too, obviously.
There should be a healthy fear of filing baseless legal challenges. Disbarment? Large fines? What's the effective remedy here, that doesn't go so far it dissuades legitimate cases?
US should just adopt the European system for lawsuits. You lose, you pay. Yes, it has a downside, as does everything else in the world, but I think the downside is much smaller than the upside (compared to the current US system).
The downside is it tilts the balance even further in favor of the richer party, as the poor party is forced to surrender if there is any risk of losing, since a party with a non-frivolous but risky case can't limit their risk by controlling their own expenditures.
Since I don't think not being tilted enough in favor of wealthy litigants is a real problem with the US system, I'm completely opposed to this method of deforming the system.
This is 100% incorrect. The loser doesn't have to pay an unlimited amount of money to the winner. If I do a lawsuit against Google and they spend $10 billion on it then I don't need to pay then $10 billion. The judge awards a reasonable amount.
Also, empirically, there are a whole lot more frivolous lawsuits in the US. In many cases, like with patents, this is basically extortion enabled by the legal system. We sue you which means that you will have to spend at least $10000 on your defense even if you win, or we can settle for $1000.
There is a reason why virtually all modern democracies except the US use loser pays.
> Also, empirically, there are a whole lot more frivolous lawsuits in the US.
"Frivolous" is not an objective descriptor and, therefore, this is not a statement which can be made empirically. At any rate, a higher rate of meritless lawsuits is an intentionally-accepted cost of minimizing the disincentive to pursue potentially meritorious lawsuits.
This is a value difference between the USA and countries that use loser pays.
> If I do a lawsuit against Google and they spend $10 billion on it then I don't need to pay then $10 billion.
Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
> There is a reason why virtually all modern democracies except the US use loser pays.
Yes, becaue most modern democracies value avoidance of private legal action more and effective venue of redress of legitimate disputes less than the US. Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
Reading your comment here makes it clear that you won't be convinced by any form of logic, but hopefully it helps some other readers:
> Unless the lawyers Google spends billions on can convince the judge that those expenses were reasonably necessary to effectively prosecute the case -- and, incidentally, lawyers that are more proficient at convincing judges that their fees are reasonable will, have higher fees.
This has never ever happened and will never ever happen for blatantly obvious reasons. If you think judges can be convinced of such ridiculous ideas by a sufficiently high paid lawyers we better just throw the whole legal system out of the window.
> Loser pays is a method of disincentivizing filing suits in general (it increases the expected costs for the plaintiff, particularly) as well as tilting the balance toward deeper-pockets litigants generally.
This is incorrect. Loser pays disincentivizes meritless lawsuits. If the plaintiff thinks he will lose, then the expected amount he has to pay is higher in a loser pays system. If the plaintiff thinks he will win the expected amount he will pay is lower in a loser pays system. Therefore loser pays incentivizes reasonable lawsuits compared to the US system.
Um... isn't the exact opposite true, namely that under the current system a poor person can't even afford to win a lawsuit and thus have to avoid them at all cost, no matter how certain they are of winning?
> Um... isn't the exact opposite true, namely that under the current system a poor person can't even afford to win a lawsuit and thus have to avoid them at all cost, no matter how certain they are of winning?
Not as plaintiff, where there own legal costs are less than the amount at issue.
As a defendant, maybe, or a plaintiff in a case where the costs of prosecution outweigh the potential recovery, yes. (The former is clearly undesirable, the latter less clearly so.)
OTOH, with this change, it makes the position of the (largely mythical) certain-to-win party (plaintiff or defendant) somewhat better, while making a significantly less wealthy party worse off in pretty much every other case.
The outline of the current system, where awards of costs have a higher standard than just "whoever wins also gets costs". That's not to say that there aren't tweaks to the details of when costs and/or additional sanctions for abuses are awarded that would make the current system better, but switching to loser pays as a rule isn't one of them.
Wouldn't a shared payment system work better for asymmetric opponents, where any legal fees either side wants to pay are contributed to a shared pool and divided equally, with some minimum/maximum amount based on income and/or net worth?
No, the parent is right. My own attorney even describes the current system as extortionate.
Even if this claim is not found to be technically frivolous (a legal term that carries a standard), the current system offers little or no penalty to those who use the courts as a bullying tactic.
If you say or do something that someone doesn't like, then they just sue you and force you to spend exorbitant amounts of money and time to defend yourself, or otherwise just capitulate to their demands. Even the effort required to show that something is frivolous can be expensive, as the standard is high.
The current design absolutely favors those with money. The defendant can win handily but stand very little chance of even recovering their attorney's fees.
MMM is not a lawyer. As an analogy, consider CFAA and other "hacking" related prosecutions where the layman might not be able to tell if a charge is without merit, but a domain expert acting in good faith can.
This goes for patent trolling, too, obviously.
There should be a healthy fear of filing baseless legal challenges. Disbarment? Large fines? What's the effective remedy here, that doesn't go so far it dissuades legitimate cases?