I'm facing this very scenario right now. We're being sued by a lawyer who is working on contingency for a client who is so delusional it makes me sick to my stomach to think about it. The really ugly side of this is that lawyers of the ilk that are suing us find specific loopholes through which they can (or attempt to) attach you personally, even if you're incorporated. We're being strong-armed to settle, and will likely pay these jerks something, just to have it go away.
If "loser-pays" applied here, this lawsuit would have been wrapped up after the very first round of inquiry.
An acceptable trade-off in my view. The defendant is by definition not the one starting the court case so its more difficult to abuse. e.g. I can go onto the street & hit 10 guys with a baseball bat. Compare that with waiting on the street to get punched in the face (unlikely to happen) & then hitting them back with a baseball bat. Both involve the possibility of someone getting hit with a baseball bat but the one is less likely to happen & more difficult to abuse.
Maybe. How about a 65% chance? Should we discourage that plaintiff if his lawyer declines to back him financially? After all, lawyers are lawyers, not bankers.
That's quite an understatement. If the plaintiff's attorney spends half of what the defense spends, he's looking at tripling his exposure if he loses. That's an enormous difference.
Good luck trying that kind of regulation in the US.
Indeed, it's about as likely as getting Germany's system of universal health care here. It just reinforces the fact that conservatives favor draconian government regulations when they benefit corporate interests but argue against those that benefit the public at large.
"It also curbs the brand of extortion, so routine in American law as almost to have lost its ethical taint, by which lawyers use the costs of the process itself, or the risk of a fluke outcome found in any trial, to strong-arm their opponents into settlement."
There was a great interview on SGU with Simon Singh, the British writer who was sued for libel by the British Chiropractic Association. He talks about how they kept on inflating their costs during the lawsuit to try to force his hand, knowing that he'd have to pay an exorbitant amount if he lost.
As a fun historical example, Richard Branson felt BA was acting monopolistically in England; they both kept Virgin out of Heathrow for some time, and one of their senior execs badmouthed the airline in England.
Virgin took the court to New York State (since, you know, JFK Airport), won the anti-trust case there, then returned and won the libel case in the UK based on evidence in the US case. At least, that's how Branson tells it.
Loser pays can work when the amount the loser is liable for is the minimum of his legal fees or his opponent's legal fees. That puts the maximum he is liable for under his own control.
I love this idea, as it completely prevents the scenario where a well-financed plaintiff uses the most expensive lawyers and runs up a huge bill, just to add to the defendant's risk and encourage a premature settlement. Under this rule, if you want to spend a bunch of money on good lawyers to improve your chances of winning the case at all, go ahead, but you won't collect more in fees by doing it, unless your opponent does the same (as they presumably will if they can afford to).
The US has a greater tendency, particularly in the areas of civil rights but also torts in general, of structuring the law so it gives the injured party a private right of action, which they enforce in courts, and leaving the executive out of it.
Europe has a greater tendency in these areas to have the executive branch deal with enforcement.
If you want to make it "fair" then reform the rules to where no party to a case can spend more than the other. If I bet my friend that I and a friend could beat him and a friend a two-on-two basketball, and he shows up with Kobe Bryant, would that be fair? What if that bet stated that the loser pays the bills for dinner at the winner's choice of restaurant? Is that fair? Yes, it would be a stupid bet to make. But the proposed policy change makes that bet no longer a choice but a matter of law.
Meaning they heavily regulate what can be charged. Why is Reason so enthusiastic about regulating attorneys but screams bloody murder if the government tries to regulate doctors or the energy industry?
Consider the analogy of a number of prisoners being forced to walk through a different minefield each day. Even if they are given a map to memorize the night before, it does not make the event fair.
The US does and they go to the winning plaintiff, which is sort of odd. After all, if someone is fined for assulting me, I don't get that money.
From the about page:
Reason is the monthly print magazine of "free minds and free markets." It covers politics, culture, and ideas through a provocative mix of news, analysis, commentary, and reviews. Reason provides a refreshing alternative to right-wing and left-wing opinion magazines by making a principled case for liberty and individual choice in all areas of human activity.
It's a bit counter-intuitive, until you consider that there is no freedom if the rich man makes the rules.
Downvoting a legitimate argument (as opposed to say, an ad hominem attack) without supporting it with your own counter-argument is laziness.