Legal Ethics and Reform


"Loser Pays" is a Partial

Solution to the Flood of Frivolous Civil Cases

    Many, some would say most, civil cases are filed with little or no prospect of actually winning at trial. These frivolous cases are filed with little hope of actually prevailing at trial; rather they are filed in the hope of extracting settlement offers from the defendants.

    Currently the system offers no effective counter that the defendant can use against these tactics except (1) mount a defense which will cost thousands of dollars or (2) offer to settle which will also cost thousands of dollars. The defendant, whether or not he is at fault, is faced with a "lose/lose" situation.

    Reformers have offered a solution to this problem. This solution is called "loser pays". In other words if the defendant prevails at trail he is able to collect his costs from the plaintiff. Alternatively, if the defendant loses at trial, the defendant pays damages and the plaintiff's costs.

    This "solution" to the problem is really only half a solution. Defendants who lack the money to stand up to a well financed plaintiff aren't helped by the solution because they can't afford the cost of getting through the process (i.e. discovery, depositions, pretrial motions before the trial judge, the trial itself, post trial appeals, etc.) In like fashion, "loser pays" posses an additional worry for the worthy plaintiff, who knows that even good cases oftentimes fare poorly in the midst of the jury selection tricks and cross examination theatrics found in the typical American courtroom.

    It is obvious that the "loser pay" solution has some value but won't be very useful unless it is augmented and refined. There are two most important additions to the process: (1) pre-screening by an officer of the court to determine if a case gets "loser pay" treatment or not, and (2) capping of the dollar amount the loser has to pay to the amount he paid his own attorney(s) or the amount the other side paid their attorney(s) whichever is less.

    Pre-screening for "loser pay" designation would cause cases to be segregated into "those that appear worthy" and "those that appear to be frivolous". Once a plaintiff got the "loser pay" designation, he would know that his evidence did not appear strong enough to prevail at trial. If a plaintiff escaped the "loser pay" designation the defendant would immediately know that the plaintiff's case was fairly strong. Defendants would be more inclined to settle with the "non loser pay" plaintiff.

    Capping the dollar amount that the loser would pay the winner's attorney seems only fair when the disproportionate expenditures by parties is considered. One party might be using a relative who is fresh out of law school and is working for $40 per hour, while the other party is using a big name firm where partners charge $300 per hour.

    When American lawyers hear about pre-screening for "loser pay" designations in civil cases, they get very upset. The idea of having the facts of the case investigated by an officer of the court before it is even formally filed "smacks" of the European Inquiry System of civil justice where officers of the courts routinely investigate the facts of a civil dispute. With objective, legally trained court employees investigating these matters early on in the process, Europeans have learned that they don't need to hire attorneys at all.

    In America, a huge portion of the legal profession depends upon unchecked civil litigation to support itself.  Some of these lawyers are plaintiff's lawyers, some are defense attorneys, but most depend upon the fear of litigation to force clients into their offices. These clients become convinced they must have all contracts, wills, deeds, trusts, marriages, funeral arrangements, financial plans, stock purchases, etc. - discussed, reviewed, drafted, negotiated, or finalized at their lawyer's office. Because of unchecked civil litigation, Americans have lost all sense of proportion about these matters.

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