March 23, 2004
You Lose, You Pay...and Pay Again 
From Overlawyered, a post on Sen. Lindsey Graham's (R-SC) proposal to implement a "loser pays" system in federal courts, designed to reduce the number of frivolous lawsuits.
From the Myrtle Beach Online Sun: "The Seneca Republican has introduced so-called loser pays legislation, which establishes a set of guidelines under which the loser of a federal lawsuit could be required to pay the winner's attorney fees.

To receive compensation for attorneys' fees, the winning side must have made a settlement offer that was rejected and then file a petition with the judge requesting compensation. The judge will make the final determination. 'Loser pays' does more to stop frivolous lawsuits in the federal court system than any other reform," Graham said. "Litigation designed to shake someone down for a settlement would be far less frequent if each party had something to lose.

Opponents say Graham's legislation would limit access to justice. Ordinary people might be dissuaded from filing non-frivolous lawsuits for fear of paying court costs if their case loses, said House Minority Leader James Smith, D-Columbia and an attorney. And the "loser pays" reform will end up "chilling folks' ability to fight injustices," said Sue Berkowitz, executive director of the S.C. Appleseed Legal Justice Center."
I'm all for frivolous lawsuit reform, but "Loser Pays" strikes me as an example of kicking someone when they're down, regardless of whether the judgment goes to the plaintiff or the defendant.

The proposal's one saving grace is that a settlement has to be refused by the plaintiff before the "loser pays" rule can be invoked, but imagine a scenario where a patient's family sues a doctor for malpractice. If the doctor offers a small sum as out-of-court compensation, and the family refuses to settle for that amount, they stand to lose thousands of dollars in legal fees if they proceed with their case and lose - something many families can't afford to risk.

Maybe a "Split the Bill/Let's Go Dutch" schema would work, both parties entering the suit knowing they will lose something, depending on how long the case goes on and how much the lawyers are being paid. Maybe that would not only discourage frivolous lawsuits, but "overlawyering" in general. What do you think?

Here's another classic: the Duluth, MN "Bubble Trial," where a diabetic woman was awarded $125,000 after she slipped and fell into a city sculptural fountain after "a prankster...put...five gallons of dish soap in the fountain, creating a mountain of soap bubbles 8 feet high and hiding the fountain." Unfortunately, the lady suffered a cut that turned gangrenous and required skin grafts, and she did run up high medical bills. However, one wonders why she walked into an 8 foot high mountain of soap bubbles in the first place.

You never know what hides inside soap bubble mountains: avoid them like gangrene.

posted by Lenka Reznicek  [link] | |

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March 23, 2004
You Lose, You Pay...and Pay Again by Lenka Reznicek



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