Hacker News Reader

Comment by londons_explore | Hacker News Reader

If you request summary dismissal of a lawsuit you end up losing, you should be required to pay double-damages.

This whole idea of each party delaying the case requesting summary dismissal just to drive costs up for the other side is stupid.

View on HN

What you want is fee-shifting. Doesn't need to be tied to the presence of a motion to dismiss. Unfortunately this is so un-American a concept we literally call it the French Rule (or the English Rule)[0].

The purpose of a motion to dismiss is to make getting rid of bullshit lawsuits easier. That is, if someone sues you for something that, say, isn't actually illegal, you get to throw out the lawsuit without having to go through discovery and a trial. This is important because rich people who can afford lawyers will absolutely sue[1] you as a censorship tactic, and being able to dismiss the suit quickly is the difference between a $10k legal bill and a $100k legal bill. In fact, anti-SLAPP bills work by giving you a fancy motion to dismiss that also triggers fee-shifting - which is enough for the rich person's lawyers to dissuade them from a censorious lawsuit.

So I don't think we should make motions to dismiss more perilous to file. They're the last speck of respectability in our awful legal system. We should instead make wasting the other party's time cost money.

[0] Except in copyright where you can get fee-shifting under specific conditions.

[1] Strategic Lawsuit Against Public Participation, or SLAPP

> We should instead make wasting the other party's time cost money.

How do you prove that, though?

You don't prove it, the other party proves it to the judge by their inept case.

I think limits should be placed even on this, as poorer people are more likely to have a bad case as a plaintiff as they can only afford to personally represent themselves.

For those representing themselves it should start coming up a bit before they'd be declared a vexatious litigant. For those represented by an attorney, it should probably be the attorney paying the fee for wasting the other party's time and money.

> I think limits should be placed even on this, as poorer people are more likely to have a bad case as a plaintiff as they can only afford to personally represent themselves.

That is a bad argument. Poor people are unable to afford a lawyer in the first place for this (or they do not know they can sue over this-the poor tend to be poor in more ways than just money). They will act out in other ways. These lawsuits are primarily the domain of the rich or the middle class very vengeful.

Right now, the fact that judges have not already implemented anti-SLAPP as a rule instead of keeping these frivolous avenues to sue is another sign of corruption in the judiciary that keeps lawyers employed.

If the lawsuit gets dismissed on summary judgment, that's one sign...

I'm of the opposite mind: motions for summary dismissal should be made as approachable as possible, ideally to the point that an individual with some basic internet-access level research can file one easily. That cuts down dramatically on the "we have enough resources to bleed you dry" style lawsuit, if you can simply say "Gigacorp is suing me for violation of their non-compete clause. Non-compete clauses are unenforceable in this state. Please go away" before even needing to get a lawyer involved.

> if you can simply say "Gigacorp is suing me for violation of their non-compete clause. Non-compete clauses are unenforceable in this state. Please go away"

I wonder, what prevents one from doing this now, and getting a lawyer only if that proves unsuccessful?

"Loser pays" is a better and simpler legal system.

Which means that people without much money can't risk suing a company with deep pockets.

As opposed to the current system, where people without much money can't risk suing a company with deep pockets because they don't have the money for a lawyer.

Money obviously is a factor in any case. But, if you hire a lawyer, you at least have control of the costs. "Loser pays" means you pay for the company's Big Law outside counsel if you lose.

If you have a solid case any good lawyer will take the case for a share of what you win - they won't win all such cases, but they have enough confidence in winning most that they can afford to accept a cases will be done without getting paid. However if there is loser pays lawyers cannot do this unless they either take a much larger share for the winnings (thus making it not worth anyone's time) so they can cover the lawyer fees when they lose a case they thought was obvious, or they need to warn potential clients there is risk they have to pay a lot of money on a loss.

Either way loser pays makes it more risky for a poor person to sue.

It would be interesting if “pays” was proportional to a party’s assets to ensure equal (yet not ruinous) pain.

It could just be capped at the lower of what the two legal teams charge. Both should have to submit their bills to the court, whichever charged less is the cap on what the loser has to pay for the other party's legal fees. That way each party is at most on the hook for twice what they paid their own legal team, assuming no other damages or penalties.

This is gameable (for instance by disclosing millions of unrelated pages of content during discovery). All you really need is for the judge to look at how much each legal team charged for what and make a ruling on what's reasonable for the loser to pay and what isn't.

Reply on news.ycombinator.com