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.

Posted by: alexthechick at 10:48 AM | Comments (9) | Add Comment
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