Get a supremely optimal outcome and get the case dismissed right out the gate because it is legally defective even assuming all the facts alleged are true? Sticker price: $10K and up (more likely $25K to $50K to make it definitive after several opportunities to amend are given to the adversary).
Go through discovery to find out what witnesses will say on deposition, dig through all key documents, and then move for and get a summary judgment before trial by which a case is tossed on grounds that the law allows only one result based on material facts that are undisputed bearing on the legal point? Sticker price: $100K and up, with a year or more of grief thrown in as a bonus.
Go through trial and get vindicated by a judge or jury based on a complete presentation of evidence? Sticker price: $250K and up, after a year or two (or more) of wrangling.
And don't forget the appeals.
Most cases never get to trial and cost is a major factor prompting litigants to settle even though they are not particularly happy with an outcome. Charles Dickens, though he exaggerated for dramatic effect, got the spirit of this right in Bleak House (http://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce), and little has changed since.
This, by the way, doesn't mean that you can't defend against cease-and-desist demands. Costs cut both ways. But it is sad how many times parties who are right nonetheless must fold because the costs of engaging (monetary and otherwise) are just not worth it.
Only sue if you have nothing to lose, or your opponents are ridiculously rich. (preferably: both).
I'm not in any way experienced in law, but it seems like that would help reduce the number of fishing expeditions and barratry.
Not quite your point, I know, but it seems to apply here.
Edit: changed my wording to be more accurate.
Jay Meisel : you suck. For doing this.
(...too bad HN pages rank low on Google).
But that tends to discourage people without substantial wealth from pursuing cases.
The law is not perfect and never will be.
Really? It seems that if you don't have much money, you don't have anything to lose. You know, like the average American buying a house during the bubble; if values go up, they make money. If values go down? bankruptcy.
The only consolation is things would be even more expensive if it was a "Gangs of New York"-style world today.
There's an interesting "law and economics" justification, which is that the party who in the best position to have prevented the problem should be responsible for the damages caused. The damages become an incentive.
I particularly liked this quote: "[I]t's reasonable to expect to find a large number of retained legal representatives under a legal system in which people feel that their property rights are constantly threatened by rent-seeking litigiousness or in which rampant rent-seeking opportunity gives them an incentive to behave litigiously themselves. The rarity of retained champions in medieval England therefore suggests that rent seeking under trial by battle wasn't rampant."
In December 2002, a 60-year-old mechanic named Leon Humphreys was fined £25 for failing to notify the Driver and Vehicle Licensing Agency that he had removed his Suzuki motorcycle from road usage. He refused to pay and claimed that he had the right, under medieval law, to choose a trial by combat with a "champion" nominated by the DVLA. This claim was denied by a court of magistrates in Bury St Edmunds, and he was further fined.
The United States inherited its common law traditions from the English system after it declared its independence in 1776, with precedents before that date entrenched in the American jurisprudence, as the Rule in Shelley's Case in property law has. The British, however, did not abolish wager by battle until 1819 after Ashford v Thornton, as noted above, and since independence no court in the United States has addressed the issue of whether this remains a valid alternative to a civil action under the law.