The new tort reform banners proclaim that plaintiffs who lose civil trials should pay the attorneys fees and costs of the defendant. Mind you, they do not advocate that losing defendants also pay the winning plaintiffsâ attorneys fees and costs. The one way, loser pays street is a sure dead end for justice and access to the courthouse.
A one way loser pays law would do nothing more than prevent individuals and small business owners from redressing civil wrongs in the courts. The risk of having to pay the other sideâs enormous legal fees and costs will prevent them for standing up for themselves. Sadly, that is exactly what loser pays laws are designed to do.
Loser pays severely harms small businesses by preventing them from filing lawsuits on past due accounts, breached contracts, partnership disputes, and the like. Unlike wealthy corporations, small business will not be able to afford the risk of losing at trial.
The fact is that taking a case to trial is no sure thing, not even for the best case. Lawyers cannot predict with any certainty whatsoever what a jury will do in any given case. Cases that were soundly based on the facts and the law are frequently lost in jury trials. The reason: The enormous amount of undue influence placed on Americans by tort reform groups, political candidates, corporations, and the like. Americans have been inundated with trial lawyer bashing and anti-plaintiff/anti-lawsuit rhetoric, little of which has any truth and are nothing more than wild, cleverly crafted stories.
When these very same Americans are called for jury duty, this undue influence that uses fear and threats to change public opinion morphs into âjury tamperingâ. Jurors bring to the courthouse and jury box their fears of doctors leaving the state if damages are not capped in malpractice cases, the cost of consumer goods rising from frivolous lawsuits, teachers quitting if parents are allowed to sue them (which cannot be done, anyway), the lose of jobs from lawsuits, and much more.
So when your state legislators seek to pass laws that make the losers pay the winnerâs legal fees and costs, see if for what it is: Corporate immunity. When corporate America wins, Americansâ access to the courthouse is blocked and we all loose.
In 30 years I have never filed a frivolous lawsuit, nor do I know any other trial lawyer who has. The reason is simple. It costs hundreds of dollars for the filing fees alone, followed by tens of thousands of dollars in costs for pre-trial preparation and trial and years of the attorneysâ and their support staffsâ time and efforts.