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Comment by lefstathiou | Hacker News Reader

Very simple solution: the US should implement prevailing parties clause (prevailing party wins legal fees by default in a lawsuit) as law of the land by default.

We had a guy in Australia trying to use our trademark, in the US they would call my bluff and I would have to spend tens of thousands to hundreds of thousands to sue. In Australia we sent a polite letter, outlined our case that was pretty clear, reminded him he would pay our legal if we escalated and made it clear we would, and the result was immediate.

In short, companies shouldn’t be incentivized to play game theory on whether or not you will sue me if I trample your rights.

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That sounds like an amazing way to empower corporate legal bullying and copyright trolls, and ensure that no single entity could ever take a company to court ever again.

How so?

Big company threatens to spend $100 million on the lawsuit to make sure they win. By outspending you they exhaust your funds and win by default. Then you go doubly bankrupt when you have to pay their legal bills.

That’s not how the calculus works actually. Today a corporate bully can safely count on you being a rational actor (and not spend $1mm to win $400k) and push the envelop of competition and appropriation of data and trade secrets with limited recourse. Under a prevailing party construct, the risk of doing so is enormous.

Thus, in instances where they are objectively wrong, they lose big. In instances you are objectively wrong, you lose big. In instances where it is not black and white, where there is merit to both sides of the argument, you settle. All this is achieved with little intervention by the courts.

In places where "loser" pays (such as the UK), rates are capped at fairly low hourly levels and hours are also capped (or at least there is a known "reasonable" number of hours for a particular type of case).

Note also that the "loser" factors in offers to settle. So if I offer you $10,000 to settle and you refuse and the court awards only $5,000 to you, you are the one that has to pay my legal bill, even though I am the one that "lost".

That is incorrect in the UK.

If one party wins, they do not have to pay the legal fees of the looser.

Settlement offers have no bearing on this.

If one party wins, their (reasonable) legal fees usually are paid by the loosing party. Except if the judge orders both sides to pay their own.

If you offer £10k settlement, and I refuse, and I win £5k, you’d have to give me £5k, plus pay my and your legal fees. What I don’t get to say is you offered £10k so I want that instead.

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