Me too.
https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee...
> "Nearly every Western democracy other than the United States follows the English rule."
Does anyone know why the US decided on this system? It seems obviously unfair.
https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee...
> "Nearly every Western democracy other than the United States follows the English rule."
Does anyone know why the US decided on this system? It seems obviously unfair.
As for fairness: loser pays disincentivizes bringing lawsuits, whether meritless or meritorious. Under loser pays, certain frivolous lawsuits would not be brought, but meritorious cases that are often uphill battles would not be brought either. If you're in the business of going after polluters (like the Sierra Club), or challenging national security policies (like the EFF), the law is not on your side, even if your cause is just.
As a practical matter, you can't just take the English rule and import it into the U.S. Europe is an "ask for permission first" place, while the U.S. is "ask for forgiveness later." That allows U.S. companies to move faster, but puts the legal system in the position of being a backstop for unsafe products, financial fraud, pollution, unfairness in hiring, etc. So for example, it would be unfair to make it untenable for individuals to bring lawsuits for wrongful termination without giving them the protections against arbitrary dismissal European workers enjoy.[1]
Much of the support for loser-pays in the U.S. is an attempt by businesses to have their cake and eat it too. They don't want plaintiffs lawyers' bringing privacy lawsuits, but they're not exactly clamoring for that system to be replaced with European-style data protection laws administered by regulatory agencies.
[1] Which model is more efficient is debatable. I think in areas where causation is difficult to prove (environmental, product safety, employment discrimination), "ask for permission first" does a better job protecting the public at lower cost. But it also gives tremendous additional power to the government to micromanage the economy.
A lot of complaints about the legal system seem centered around particular cases where things seem unfair, but it's important to bear in mind that the legal system as a whole tries to optimize multiple, sometimes-contradictory objectives, and every design choice represents a tradeoff.
* The tradeoff between discouraging frivolous lawsuits vs. discouraging legitimate lawsuits is one case
* Another common complaint is that laws and regulations are complex and inscrutable -- but the tradeoff is that a simpler, shorter law will be more ambiguous and therefore actually less predictable in practice until it's been thoroughly litigated
Sometimes it surprises me that professional software engineers deal with systems design tradeoffs every day in their own work, but then fail to see that systems design logic also applies to human institutions.
I think it's because the equilibriums look much worse. Even if your system is a pile of hacks on top of hacks, it might at least be good enough right now. Not to mention that sometimes you engineer something that works pretty well. Meanwhile the legal system often fails even for the exact situations considered when the rules were made, and there's pretty much no one would feel there isn't some gross injustice happening within it quite frequently (though the injustice may vary).
Interesting to see you advocate for "ask forgiveness later", one could render that as "if you're rich the legislature is happy as long as you give it a cut". You might as well ditch all corporate application of the law and just increase business taxes, same result but more economical.
1. The English system doesn't necessarily protect a litigant. A well funded patent troll or a poorly funded but well meaning patent violator is now potentially on the hook for both damages and attorney fees. This is especially problematic when the law favors the accuser (as it seems to do in the American patent system).
2. It's a system that favors the "big guy", the party that has retainers for research, potential suit identification and preparation, not someone who might be accused. This forces smaller parties to invest at least some of their resources in "CYA" rather than doing what they are built to do (make products, for example).
3. It could affect supply of attorneys available to take a case or their fees. Say you feel there's a good chance of beating a wealthy litigant, so you charge more and misjudge? Or you don't feel you could be paid by the opposing party? Grant it, this likely cuts both ways. In the case of patent trolls, it might be beneficial, but perhaps not in others?
While the defendant in a patent lawsuit might feel they have an airtight case, it is never certain what will happen in a courtroom. You might lose and need to pay the damages PLUS attorney's fees for the plaintiff.
Result: no one sues Megacorp for small amounts of money. Megacorp can get away with lots of things that they would otherwise be sued for.
(I don't know if this happens in reality, but I do think it's a legit thing to worry about.)
That way Megacorp can hire 100 barristers if they want but if you lose you pay ordinary levels of costs. It might still bankrupt an individual but Megacorp can't just financially pressure all opponents in giving up in cases when Megacorp will obviously lose no matter who represents them in court.
Also, Small Claims (which I think USA has too), has very limited awards of costs, I'd usually contended just on paper and covers small charges. Allowing you to sue Megacorp by filling out a simple form and not even enlisting a lawyer.
A system with an assumption of awarding reasonable costs seems most preferable.