March 30, 2010
In which I am more of a bitch than usual
I must say, I find it rather freaking hilarious to hear the woe and lamentation about Westboro (may the meteors smite them) being awarded costs after winning the appeal by many of the same people who support a loser pays system of civil litigation. Welcome to the consequences of your position.
MASSIVE DISCLAIMER: I work in the legal field, plaintiff side personal injury. Of course I have a financial incentive to be against loser pays. I think the three people who read this know that but still. FURTHER MASSIVE DISCLAIMER: These opinions are my own and in no possible way reflect those of my employer or, hell, anyone else who posts here.
When people discuss loser pays, I am always struck by the naivete that presumes that justice always wins out. Sure, juries sometimes award huge verdicts for stupid cases. But juries also do incredibly insane things like finding a driver who ran a stop light to be not liable for the accident. Do people really and truly want the loser in that situation to pay? Really? People need to understand the consequences of their positions. If loser pays gets put into place, every single solitary case will go to trial. Every. Damn. One. If you're the defendant, why not? If it's an obvious case you're stuck with the costs anyway. You might as well roll the dice and see if you can't get the jury to do something crazy. Then you stick the plaintiff with the appellate costs and another 2 years of waiting for recovery. If you're the plaintiff, you might as well bring that insane case. If you win, it's not going to cost you a dime. If you lose, well, then you'll tie it up in appeals for years. So you have to pay the attorney fees. Bankruptcy will take care of that.
See, I keep hearing that loser pays will somehow magically reduce the number of lawsuits filed. Take it from someone who actually works in that field, it won't work out like that. Most people who sue want a pound of flesh. They'll take money but what they really want is for someone to pay. That emotional drive isn't susceptible to economic rationality.
I'm actually not terribly against loser pays. I do respect those who understand and accept the reality of what that means. I reserve the right to point and laugh at those who are all shocked and horrified when it results in costs being taxed against someone the person likes. Either accept the consequences or don't hold the position. To paraphrase Dorothy Sayers, a principle is only a principle once it kills someone.
Westboro won the appeal. Under the Federal Rules of Civil Procedure, those ratbastards are entitled to be taxed certain costs. If that's so horrifying, think about the consequences if loser pays was in play and the entire attorney fees were being paid. If you don't like that? I suggest you reconsider your position.
MASSIVE DISCLAIMER: I work in the legal field, plaintiff side personal injury. Of course I have a financial incentive to be against loser pays. I think the three people who read this know that but still. FURTHER MASSIVE DISCLAIMER: These opinions are my own and in no possible way reflect those of my employer or, hell, anyone else who posts here.
When people discuss loser pays, I am always struck by the naivete that presumes that justice always wins out. Sure, juries sometimes award huge verdicts for stupid cases. But juries also do incredibly insane things like finding a driver who ran a stop light to be not liable for the accident. Do people really and truly want the loser in that situation to pay? Really? People need to understand the consequences of their positions. If loser pays gets put into place, every single solitary case will go to trial. Every. Damn. One. If you're the defendant, why not? If it's an obvious case you're stuck with the costs anyway. You might as well roll the dice and see if you can't get the jury to do something crazy. Then you stick the plaintiff with the appellate costs and another 2 years of waiting for recovery. If you're the plaintiff, you might as well bring that insane case. If you win, it's not going to cost you a dime. If you lose, well, then you'll tie it up in appeals for years. So you have to pay the attorney fees. Bankruptcy will take care of that.
See, I keep hearing that loser pays will somehow magically reduce the number of lawsuits filed. Take it from someone who actually works in that field, it won't work out like that. Most people who sue want a pound of flesh. They'll take money but what they really want is for someone to pay. That emotional drive isn't susceptible to economic rationality.
I'm actually not terribly against loser pays. I do respect those who understand and accept the reality of what that means. I reserve the right to point and laugh at those who are all shocked and horrified when it results in costs being taxed against someone the person likes. Either accept the consequences or don't hold the position. To paraphrase Dorothy Sayers, a principle is only a principle once it kills someone.
Westboro won the appeal. Under the Federal Rules of Civil Procedure, those ratbastards are entitled to be taxed certain costs. If that's so horrifying, think about the consequences if loser pays was in play and the entire attorney fees were being paid. If you don't like that? I suggest you reconsider your position.
Posted by: alexthechick at
10:48 AM
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1
Just how the game is played, and these freaks are good at playing the game. People forget Phelps was a lawyer till he got disbarred for committing perjury in a lawsuit he'd filed.
Posted by: doubleplusundead at March 30, 2010 11:35 AM (ExS/s)
2
If WBC was burned to the ground with all members inside the church building (not that I'm suggesting that anyone do that, hey feds, this is NOT a death threat), they wouldn't have the opportunity to sue for costs. Just sayin.
Posted by: Alice H at March 30, 2010 12:20 PM (qJHYy)
3
Well, maybe. What if one party is represented by J. Struggling Barrister and the other by $ilk, $tocking, and Expen$ive, LLP. Pure “loser pays” would certainly discourage litigation against the latter.
every single solitary case will go to trial
Well, maybe. What if one party is represented by J. Struggling Barrister and the other by $ilk, $tocking, and Expen$ive, LLP. Pure “loser pays” would certainly discourage litigation against the latter.
Posted by: Old Grouch at March 30, 2010 01:27 PM (M9BNg)
4
I'm with Alice. My theory is that protesting someone's funeral represents not just "fighting words" but "killing words."
I recommended on my Facebook that they kindly return the money to the father in order to not promote people taking "other" routes to satisfaction.
I recommended on my Facebook that they kindly return the money to the father in order to not promote people taking "other" routes to satisfaction.
Posted by: Moron Pundit at March 30, 2010 02:31 PM (GC5S2)
5
What if one party is represented by J. Struggling Barrister and the
other by $ilk, $tocking, and Expen$ive, LLP. Pure “loser pays” would
certainly discourage litigation against the latter.
Nope. It would encourage the creation of alternate forms of litigation funding and/or the consolidations of Plaintiffs firms into Super Mega Evil, P.C.
Nope. It would encourage the creation of alternate forms of litigation funding and/or the consolidations of Plaintiffs firms into Super Mega Evil, P.C.
Posted by: alexthechick at March 30, 2010 02:34 PM (8WZWv)
6
I can't figure it out.
They specifically say they want to cause pain and suffering.
They were sued for "pain and suffering".
It seemed open and shut to me.
They specifically say they want to cause pain and suffering.
They were sued for "pain and suffering".
It seemed open and shut to me.
Posted by: Veeshir at March 30, 2010 07:22 PM (eUrbI)
7
What I don't get is WBC lost the initial case and filed an appeal. So the father didn't get the money immediately. WBC won the appeal so the father appealed to the Supreme Court which (as I understand it) has AGREED to hear the case. So... why does WBC get to collect before that appeal is heard?
Posted by: MikeD at March 31, 2010 09:16 AM (FkL60)
8
So... why does WBC get to collect before that appeal is heard?
I'll have to take a quick look at the appellate posture but there are very strict filing deadlines in federal court. Off the top of my head, if you don't file a petition for costs within 14 days then you waive it.
Usually what happens is that the petition is filed and then the losing side can dispute it. I'm not really sure why an order would come down awarding costs if cert was granted unless the fee petition wasn't stayed during the pendancy of the cert petition.
I'll have to take a quick look at the appellate posture but there are very strict filing deadlines in federal court. Off the top of my head, if you don't file a petition for costs within 14 days then you waive it.
Usually what happens is that the petition is filed and then the losing side can dispute it. I'm not really sure why an order would come down awarding costs if cert was granted unless the fee petition wasn't stayed during the pendancy of the cert petition.
Posted by: alexthechick at March 31, 2010 11:02 AM (8WZWv)
9
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