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Loser pays

Posted by cornopean none (My Page) on
Tue, Mar 5, 13 at 20:03

What do you people think of the idea of loser pays? the idea that in any lawsuit, the loser has to pay the winner's lawyer's fees?

Here is a link that might be useful: wikipedia - loser pays


Follow-Up Postings:

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RE: Loser pays

I guess in my mind it depends on who brought the lawsuit. If someone brings a lawsuit against someone and then they lose, I am favorable toward the concept of having the loser pay the winner's costs because he/she made that person incur those costs.

But if someone sues me and then I am the loser, I don't see why I have to pay their costs. Now they could include their costs into the calculation of damages and then I end up paying anyway.

So I guess one could argue that the loser could pay either way ....


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RE: Loser pays

You might want to rethink that, go David & Goliath. Latham Watkins against your next door neighbors cousin who just graduated from Whittier in Orange County for lawyers..


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RE: Loser pays

It would certainly discourage legitimate lawsuits by us "little people" against big corporations or businesses with deep pockets.

Terrible idea.


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RE: Loser pays

ok....but is it worse than what we have now? currently, people can get sued by someone and even if you win, you lose b/c you have to pay mountains of lawyer fees. the only winner is the lawyers. so I can hurt you EVEN if I lose the case!

at least in loser pays, there is a strong incentive not to sue if you know you don't have much of a case.

sounds like a winner to me. this is the way it works in most other countries according to wikipedia.


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RE: Loser pays

But what if you have "much of a case" and are going against big money. Can someone of the side of the angels chance losing even if they are right?

No, I still think it's a bad idea, no matter what Wikipedia says.


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RE: Loser pays

momj47 how is this any worse than what happens now?

Under the current system, what good is it if you win? You still "lose" b/c you still have to pay your lawyers. There is no possible good outcome.

At least with loser pays, there is a possible good outcome; and if you win, you really win.


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RE: Loser pays

It would only work if the losers could, or would pay the bills.

I've won countless judgements totaling hundreds of thousands in my lifetime, however collecting is another issue.

To make it work, all parties would have to have security - money, collateral before they could sue.

The last loser that tried to sue me didn't have a pot to pi$$ in. I won a large judgement against them, however they have numerous other judgements, garnishments etc, plus no savings, credit, assets, documented income etc.


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RE: Loser pays

I've won countless judgements totaling hundreds of thousands in my lifetime

Here's the problem with our legal system, people who are in court "countless" times.

I would guess that most people on this forum have never been to court for any kind of case (except traffic court). I certainly have never filed, won, nor lost a judgement.

It's not a modern problem. My SIL, working on our genealogy, is finding the best information in court records - the disputes started as soon as the first colonists landed. LOL


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RE: Loser pays

What do you people think of the idea of loser pays? the idea that in any lawsuit, the loser has to pay the winner's lawyer's fees?

Generally speaking, this is like any issue in the sense that you have to come to it with an understanding of what the facts are, what they mean to people in a practical setting and be prepared to change your mind as you learn more or when circumstances and times change.
You cannot come to any issue with a stubborn ideological point of view, or as many self-proclaimed "Conservatives" do, an inherent need to maintain the status quo coupled with an arrogant belief that they are always right and others are wrong.
In that spirit, I credit the OP for framing this as a question and not a statement.
We do not have a system where one can easily harass others by filing frivolous Complaints in Court but this is not a black and white issue. There have been some abuses of the system.

First of all, it costs a lot of money to hire an attorney to conduct litigation as anyone who has done that can attest.
Secondly, if you are worried about the poor corporations that make dangerous products, wealthy Doctors and health providers that kill and maim patients through their negligence, consider how much money they have to sustain litigation compared to what you can.
Finally, there are already laws in effect in most jurisdictions that allow the Court to impose the sanction of attorney fees when it is determined that a law suit was frivolous. How often that is actually done is something that could be looked into by you if you are interseted in pursuing this.

If you find that there are a slough of frivolous cases filed and the plaintiffs are not sanctioned are not sanctioned for filing them, then that would be a problem.
My question is where is the evidence that frivolous lawsuits are rampant in any State or in any Court? Absent some data on that, we are just talking ideology and I dare say, Right Winged ideology.
Until there is some data that suggests that frivolous cases are a significant problem for our Courts, I do not want to see any drastic changes that would have a chilling effect on the Right of Due Process. Let people have their say and their day in Court and let the Doctors and Hospitals and the big corporations pay the penalty for negligence, including negligence that causes pain suffering and death. Unless we have that, we just succumb to the Libertarian ideal that free market principles apply to everything including justice and that those with money and power always win, right or wrong.


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RE: Loser pays

"It's not a modern problem. My SIL, working on our genealogy, is finding the best information in court records - the disputes started as soon as the first colonists landed."

I've been doing genealogy for a few years and, yes, suing people seemed to be a national pastime in the 17th and 18th centuries, just like it is now.

In an ironic sort of way that's good; it gave us court records to use for genealogical purposes. :-)

The suits back then usually pertained to settling breach of contract issues. Slander and libel were pretty big too (a good way to make a quick buck and ostensibly restore your honor), as were marital issues. But most weren't as far-reaching as today's lawsuits. We've taken it to a whole new level.


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RE: Loser pays

I'm going to jump in here with a Canadian perspective.

I deal with litigation on a daily basis as part of my profession, and here I have never seen an action where the Plaintiff didn't request costs or a defense that didn't ask for the claim to be thrown out and have costs awarded to them. It's just standard language when preparing these documents. Most of the matters I deal with are settled out of Court and each party pays their own costs, or the Court will submit a Judgement specifying that each party is responsible for their own costs. I have seen costs awarded to the Defence in matters where the claim was completely frivilous in the first place, or the Plaintiff failed to even show up to court. Rarely have I seen costs awarded to the Plaintiff, but that's likely because those matters that would result in that outcome are usually settled out of Court.


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RE: Loser pays

But most weren't as far-reaching as today's lawsuits. We've taken it to a whole new level.

Do you have any statistics or proof that there are numerous frivolous lawsuits filed?
Do you really think that people can afford to pay attorneys to pursue frivolous cases and risk sanctions or that attorneys are foolish enough to take cases on contingency that their clients have little or no chance of prevailing on?
Oh yes, remember that McDonald's coffee case...
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" Stella Liebeck of Albuquerque, New Mexico, was in the passenger seat of her grandson's car when she was severely burned by McDonalds' coffee in February 1992. Liebeck, 79 at the time, ordered coffee that was served in a styrofoam cup at the drivethrough window of a local McDonalds.

After receiving the order, the grandson pulled his car forward and stopped momentarily so that Liebeck could add cream and sugar to her coffee.

Liebeck placed the cup between her knees and attempted to remove the plastic lid from the cup. As she removed the lid, the entire contents of the cup spilled into her lap.

The sweatpants Liebeck was wearing absorbed the coffee and held it next to her skin. A vascular surgeon determined that Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebecks. This history documented McDonalds' knowledge about the extent and nature of this hazard.

McDonalds also said during discovery that, based on a consultants advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Further, McDonalds' quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the "holding temperature" of its coffee.

The jury awarded Liebeck $200,000 in compensatory damages. This amount was reduced to $160,000 because the jury found Liebeck 20 percent at fault in the spill. The jury also awarded Liebeck $2.7 million in punitive damages, which equals about two days of McDonalds' coffee sales.

Post-verdict investigation found that the temperature of coffee at the local Albuquerque McDonalds had dropped to 158 degrees fahrenheit.

The trial court subsequently reduced the punitive award to $480,000 -- or three times compensatory damages -- even though the judge called McDonalds' conduct reckless, callous and willful. "

Here is a link that might be useful: McDonald's coffee case


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