The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it but I have not been able to understand it.
A lawyer has every incentive to take a case on contingency, in the hopes that a few of them will strike gold. In doing so, the lawyer is incentivized to never turn down a case, no matter how frivolous.
To fix this, it ought not be the losing plantif who has to pay, but rather in frivolous cases, the losing lawyer ought to pay.
Frivolity can be determined by the judge or jury (perhaps only after unanimous verdicts)
This way, it is the responsibility of the lawyer to take on only cases which have real legal merit, and stop digging for gold.
Edit: I've held this idea for a while and don't see many shortcomings. I would love to see where it falls short if someone disagrees.
nobody would take jobs then unless the chance of winning was 99%.
The lawyer would also in those case being getting charged money to work.
Edit: Also the lawyer would not being charged money to work, they would be getting fined for wasting the court and jury's time. That's like saying a contingency lawyer is working without pay: well yeah, but it's factored into the cost of business. There are still chances for high payout but now there is also a much needed downside.
Oh ok, as long as it isn't applied to every case.
Isn't this somewhat handled by awarding "token damages" of $1 or similar? The litigating party "won", but it was determined that they were not actually harmed as claimed.
this on the other hand further increases costs of those frivolous cases requiring a second trial to test frivolousness of the case
No, they are more selective about taking on contingency cases. Every losing contingency case is hours of unpaid work.
I've sat on a jury for 2 days on a malpractice case that had no factual basis, that relied on a tortured interpretation of medical notes.
We unanimously decided the case for the defendant. Wish we had the opportunity to somehow penalize the lawyer for wasting everybody's time. I'm sure I'm not alone.
The only reason the lawyer took the case was that he was hoping to strike gold, and was a crap enough lawyer that only people who were turned away from better lawyers (because they had no case) came to see him.
Having to pay for the doctor's lawyer sure would have deterred this guy.
I'm pretty sure that this works pretty much like spam or nigerian prince scams. If the lawyer works on tens or hundreds of such cases some % of those cases could be won and some % will settle to avoid legal costs. Total income might be high enough to justify unpaid work on other cases. I'm pretty sure that you could even partially automate a lot of things (or at least use some templates) for multiple similar cases thereby reducing the amount of unpaid work.
What's the reason, and does that reason contravene legal/judicial ethics?
I am suspicious of slang terms like "ambulance chaser" and "jaywalking" that tend to bias the listener in favor of well-funded corporate interests over individual citizens.
Note also, that in the UK the court asseses the costs to be paid by the loser, you don't just get hit with the defendants lawyers invoice, an estimate has to be submitted before the trial begins, they cannot be disproportionate to the damages being claimed and there are lots of exceptions for things like small claims court costs which are limited.[1]
[0] There was probably some emotional harm and lost earnings in there too, but the house was the big one.
Edit: I would expect the main claim to be reputational damage with some absurdly high made up dollar value, and if the facts of the case are as you have presented them, the plaintiff would probably win a smaller, but still very high award.
You can’t even put punitive damages in a contract, so for example if you hire a builder and write that the house must be finished by date X, or they have to pay Y per week. You can’t select any figure for Y it has to be a reasonable estimate of how much it would cost to deal with the situation i.e rent another house temporarily, pay removals company twice etc. If it’s too high you run the risk of having the term struck out as punitive and therefore getting nothing.
If you want a million-dollar legal team, you can get it. But you have to pay for your opponent’s million-dollar legal team too.
If the goal is to reduce the caseload in the courts, loser pays is effective. If the goal is for the reasonable access to everyone of the courts, the current system is (I hesitate to say this, but) better. I also think that when you have a class of worker(lawyers) who's job is to read/interpret/test the boundaries of/defend the law of the land, you will always find some people who figure out ways to game the system.
Only federal judges and (in most states) the highest state court judges have lifetime terms.
An even better way would be to eliminate laws that let people be hauled into court when they have done no harm. A huge example is the war on drugs: criminalizing mere possession of drugs, with no requirement that the person has to have harmed anyone, means a huge number of drug cases cluttering up the courts that shouldn't even have gone to court at all.
as already posted in this thread, many countries solve this by putting a treshold on this amount to be repaid by having fixed rates for legal costs (you have to repay the legal costs but not more than those fixed rates)
Originally (in the 18th century), legal fees were regulated by the state (/colony), and these fees would be borne by the losing party. But these fees were rather miserly, so the legal profession argued for the ability to charge what they wanted as a consequence of freedom of contract. By the mid-19th century, the courts relented and permitted this, but cost recovery was limited to the miserly fees permitted by legislation, and it was felt unjust and unfair to have the losing party bear costs they had no control over. After some vacillation, the courts eventually agreed that costs could be recovered, but only if the legislature rather explicitly allows for it in law or statute.
*I'm quite sure that this solution in Polish legal system was modelled after the German law.
But that's also the big risk: if they're sure they're going to win, spend big to ensure that victory, and then still lose, then they lose far more than they can possibly afford. It's a very risky gamble.
The problem with each side paying their own fees is that there is no such beneficial investment scenario for the party that eventually wins. it's all pure losses and then you win but are not really compensated for the financial cost of defense.
It also would invite too many disputes into the courts, since an aggrieved party could feel it's almost free - the person who hurts them to the tune of a couple of hundred dollars will have to pay tens of thousands and they get nothing. It is possible that some disputes have a genuine good party and a genuine dodgy party, but in many cases they're just people who life happened to. The loser should compensate the other party but not necessarily get punished. If the loser was being malicious, they should be made to pay. But we shouldn't assume the loser is malicious, just that they lost.
It seems to me if you want the loser to pay, you'd have to create a regulated system for costs in order for them to be fair. A clever lawyer might have a way to take additional payments, but they'd have to be outside of the system, not recoverable by the court. But doesn't that end up in exactly the same situation as before?
I don't think there really is any feasible way to prevent rich people and companies to have access to more/better representation.
Google harms me in some way. I sue them. They throw an army of lawyers at the case. It takes years. Google wins, case dismissed. I should be on the hook for their legal fees?
Believe it or not, the last thing we want is to discourage people from thinking they have the ability to sue people who harm them. And suing for legal fees is also common practice.
Patent trolls are a problem with the law, not the legal system. They are also entitled to sue people violating their patents.
That's a separate issue from whether the loser pays: even with automatic loser pays (or in the situations where the loser pays even in the American system) limitations to “reasonable” costs (or actual specific legislated caps) are possible.
That's the solution in germany and it works quite beautifully (sans people intimidating others into believing they'd loose).
In Germany you have to buy insurance against getting sued. I mean, you could call that an indication of a beautifully working system, but I call it an utter failure.
That is incorrect, and what's more is that I have no idea where you're getting this from (it's possible that certain professions are required to buy extra insurance, but the only universally mandatory insurance in Germany is the health and social insurance).
> correlates to the total number of actual customers
Hard to say. Companies can have them, but I doubt there are 22m. Families can have them and cover multiple people at once. Germany's population is only 82m, so 22m just sounds like a lot to me.
[0] (ger) https://de.statista.com/statistik/daten/studie/6599/umfrage/...
Simply making sure the case takes as long as possible to be concluded and costs as much as possible works in practically any legal system as a way to gain an unfair advantage if you have more money to burn than your opponent.
The losing party doesn't automatically have to pay legal fees (but may be ordered to in certain cases) because, the theory is, that there is a space where a party is clearly wrong to even litigate, and a space where a party, even if they are legally in the wrong, is not so clearly wrong so that it is wrong for them to litigate to determine their rights, and that justice is best served when potential litigants with a reasonable case are not discouraged from litigating to determine their rights.
> The fact you can "shake down" someone through suing them in the US is appalling and I am sure there is a good reason for it
The alternative to that is to increase the ability of a wealthier party to commit a wrong and leverage the irreducible uncertainty of a human justice system to intimidate a less-wealthy party to accept the outcome and not litigate, because of they are unsuccessful they will have a guaranteed high additional cost on top of the sunk cost of the harm done.
It's very common in Israel for the judge to rule that each side cover their own legal expenses (e.g. if the ruling is in favor of the defendant, but the lawsuit isn't frivolous).
Imagine if we forced a child to pay a police officer before the police would investigate claims of abuse.