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Comment by adebtlawyer | Hacker News Reader

Having litigated against adversaries who use the courts primarily to be a nuisance, with little or no regard to the actual strength or weakness of their claims, I've become convinced "loser pays costs and attorney's fees of prevailing party" is a better system than what we have in the U.S.

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This is not the only difference between the justice systems in US and EU (EU is what I consider to be elswhere): in US the case is the battle between boths sides lawyer, and the judge is simply a watching function, that a the end calls the sentence, based on the outcome of that battle. In EU, the case is a so called 'process of finding material truth' and the judge can take active stance, call witnesses, ask additional questions, call for professional opinions and so on - it is no longer a battle of who has better lawyers but a way to find what's the actual state of things.

The US system is also supposed to be a process of truth-finding, just that we leave the parties to support their own positions as adversaries. Without advocacy, American courts do very little on their own. So far that doesn't bother me, but I'm a lawyer. For someone thrown into the system, there can be an incorrect expectation that the court will automatically act to do justice.

Part of the problem with the adversarial system is that if one party has bad lawyers, you can end up with bad case law as a result of them failing to properly argue their case.

You could end up with one party intentionally losing a case in order to establish precedent that they expect to profit from in the future, because they expect they'll usually be on the other side of similar cases.

Really? Have you ever heard of a case where this occurred?

Not sure, but I seem to recall a case where Microsoft was on the other side of a suit from where you'd expect them to be, and people were afraid they'd lose intentionally. No idea what it was about or how it ended, though.

There's an important qualifier: loser pays reasonable costs of prevailing party, and the judge decides what is reasonable. It's not automatic. This addresses the concerns about a deep-pocketed party spending lavishly and winning, and the loser being forced to pay a massive legal bill.

(I'm not an expert on the subject, but it's been discussed before on HN, and this is my recollection.)

It occurs to me that an interesting variation would be for the loser to pay an amount equal to the lesser of the two parties' legal bills. That would limit the risk, and remove the incentive for the deeper-pocketed party to spend money just to inflate the bill.

Another important factor to consider;

I am small troll A suing company B. I lose, judge orders that troll A pay all the legal fees. I don't have the money, I file bankruptcy, I flee the country.

Lawyers still want to get paid. I doubt any legal team will just chase some random around into collections because "loser pays"

>>There's an important qualifier: loser pays reasonable costs of prevailing party,

I remember a comment a while back on HN or somewhere which suggested an approximate solution to this : the loser must pay the costs equal to its or the winners fees- whichever is lower.

Is there any issue with unfair inflation of costs? From what I understand these patent trolls are mostly teams of lawyers. Under this ruling could they charge themselves exorbitant rates, then the few times they do win makes up for the times they lose?

What about the situation with east Texas where they side with the patent holder the majority of the time?

Under this I might almost be more likely to just settle. Do I pay nothing, a paltry sum to settle, or 2-4x the cost without "loser pays" to lose? If I have even a 10% chance of losing it sounds like settling might be a good deal.

>Under this ruling could they charge themselves exorbitant rates, then the few times they do win makes up for the times they lose?

Not to mention that the costs to the losers the few times they win would really scare anyone who isn't able to eat the massive costs anyways. Would you sue someone from stealing thousands from you if there was a small chance at you owing them millions?

I was under the impression that frivolous law suits were subject to rulings that would aware attorney fees to the defense. Is that not the case?

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