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> So, the strongest and most common objection against the English rule is that it would prevent the poor from suing even if they had a good case; they just couldn't afford a 10% chance of owing thousands of dollars. I am very sympathetic to this objection.

That is very unlikely. Courts are not generally required to award costs to the winner of a case here in England, it is more of a default in most cases instead of adopting "everyone pays their own costs" as in the US.

I am not a legal expert, but I doubt a court would award crippling costs to a little guy who brought a case with genuine merit against a big guy but lost, where the little guy incurred only modest costs but the big guy brought the whole legal team to bear.

Likewise, I doubt a big guy bringing a punitive law suit against a little guy and incurring lots of costs when they could have settled things in another less expensive way would get much sympathy, which is why the US seems to have certain Big Media organisings effectively extorting settlements from innocent people for thousands of dollars, while such behaviour is unheard of in this country.

> Already, lawyers will offer to work for free unless the plaintiff wins.

I guess you're referring to so-called "no win, no fee" agreements? If so, it's not quite as simple as that (the lawyers also stand to gain more if they win than they would in a regular case), but your general argument still works.

>Courts are not generally required to award costs to the winner of a case here in England, it is more of a default in most cases instead of adopting "everyone pays their own costs" as in the US.

Thanks, I didn't know this. I'm still not convinced that the threat of legal fees wouldn't convince a non-insignificant fraction of poor plaintiffs not to sue.

> I guess you're referring to so-called "no win, no fee" agreements? If so, it's not quite as simple as that (the lawyers also stand to gain more if they win than they would in a regular case)...

I know. In effect, the lawyer is selling insurance to the client. The client will get less in case of a win both because (a) he bought insurance, which brings his variance down (and so, his total payout in case of a win is lower) and (b) the lawyer collects a premium for absorbing the risk.

I am not a legal expert, but I doubt a court would award crippling costs to a little guy who brought a case with genuine merit against a big guy but lost, where the little guy incurred only modest costs but the big guy brought the whole legal team to bear.

That's a whole lot of conditionals. In places where the judiciary is thoroughly corrupted by electioneering (coal interests in West Virginia, for instance), relying on judges to respond non-punitively can be an unsafe assumption already. A libertarian loser-pays movement only slants that further.

Indeed, which suggests that in order to move towards the less acrimonious legal atmosphere of the UK or Europe, you would need to do more than adopt some of their mechanics. You'd ultimately need to de-politicize the entire branch of government.

As far as I know, in the UK and most of Europe, and definitely here in Canada, Judges are appointed by judicial commissions on the basis of strength of legal scholarship, not picked in a popular election based on who can raise the most money and pander to the right interest groups.

Beyond de-politicization, which can cut a lot of different ways, the other factor in acrimony-reduction is the European social safety net. The EU legal system doesn't have to be the tool of last resort to the same extent as in the American style.

See also Matt Yglesias: http://yglesias.thinkprogress.org/2008/12/loser_pays/

What do you mean by the "European social safety net"?

The legal system should normally be the last resort, but you seem to be suggesting that we have some sort of universal alternative to try first. There may be other options in specific contexts, for example disputes with service providers in regulated industries where there is some sort of ombudsman scheme, but it is not the case in general.

You'd ultimately need to de-politicize the entire branch of government.

You mean de-democratize the entire branch of government?

Unless your court cases are all heard by the entire population, your judiciary is not a democracy anyway.

If your judges are appointed permanently by some sort of panel, drawn from some level of politicians, who are themselves elected via a system that is open to trivial interference by well-funded special interest groups, then your judiciary isn't even close to democratic.

The judges (in the UK) are appointed from senior lawyers by other judges who were themselves appointed by previous judges etc... It does mean that it takes a few generations to get many black or women judges - but it does reduce the level of corruption and means that a lot of politically motivated prosecutions get thrown out.

It's not democratic - but neither is the process of selecting senior doctors from the ranks of junior doctors.

I don't want my court case being judged by someone who has to consider what that judgement means for their chances of re-election. If they have to campaign, well, that takes money... so they'll need donors... so can they really afford to rule against LocalBigCo?

I'm not disagreeing with the argument of OP, just the language.

Isn't your comment a general indictment of American democracy in general? Why have an elected congress making policies then?

That is a very good question. One that men have asked themselves over millenias. That is why since the birth of Democracy in Greece, we have had tyrants, dictators, emperors, kings and queens, oligarchs, etc.

I would suggest however that in theory, the politicians sell their policies, rather than themselves per se, although they do sell a bit of themselves also. But the way our system works is, you have a philosophy of governance which is conservative, low taxes, traditional values, screw the poor, and the democrats, sort of distribute wealth, keep the companies in check, tax the rich higher, etc. Any one politician in this scheme is not an individual, but rather a representative of a philosophy, or even ideology. So, it is right that the public decides which they prefer at any given time.

However, it would be quite savagery for the public to decide as to who should be guilty of murder, or rape, or conspiracy, or robbery, or the thousands of cases that go through the court. It too would be idiotic for the lay public, with very limited knowledge of the law, to decide as to who should be a judge, a job which requires high intelligence, but also common sense, a sort of moral structure, so taught through law school. Same as it would be idiotic for the public to decide who should be a doctor.

Everything about a court case is a conditional. It is relatively unusual for the evidence to be so clear-cut that there is no doubt about the verdict, and often a court must make the fairest decision it can based on far less evidence than it might like.

That said, this isn't really a hypothetical issue. Our courts function in this way every day. Please understand that to those of us on this side of the Atlantic, everything you are describing just sounds weird. "Judiciary corrupted by electioneering"? Judges responding "non-punitively"? Our judiciary in the UK has a long and honourable tradition of being the standard-bearers of justice that one would hope they would be, and of resisting politicisation far more effectively than the other major branches of government (to the extent that we have them; our system doesn't treat US-style separation of powers as sacrosanct either).

Having been in a court on a couple of occasions, although never as a plaintiff or defendant, I have always been impressed by the way the officials conducted themselves. IMHO, our legal system does have its problems when it comes to handling relatively low-value cases, but those are more due to the time and effort required to figure out how the system works and complete all the paperwork than because the legal fees are prohibitive.

One injustice I have personally witnessed happened when someone was cleared of a motoring offence, on the second hearing since the first was aborted when courtroom time ran out for that day. That person lost had two days of their life attending court, and presumably also spent considerable time planning their defence (as they were not legally represented). They must also have had the stress and uncertainty from waiting nearly a year to hear the verdict, and presumably lost out on some income that would have been earned on those days they were in court, because even though they were cleared of all charges, defendants do not even seem to get the same expense refunds that witnesses do. I find the fact that someone deemed not guilty in court should still be harmed even to that extent to be unfair. I simply do not understand how any system where someone innocent might wind up paying out hundreds or thousands in a settlement because the danger of having to pay for their own defence in court would be even more could possibly be in the interests of justice.

"Already, lawyers will offer to work for free unless the plaintiff wins."

In the US, yes. Not in Europe. Here in the Netherlands, it's actually prohibited by the rules of the (loosely translated) National Bar Association to take a case on a 'no cure, no pay' basis.

This article is misinformed and misleading. The legal culture is very different between the US and mainland Europe. The claims that are being made in the article are largely misrepresentations of what actually happens; for example, her in the Netherlands the amount a judge can (but doesn't have to, and often does only in part) award the loser to pay for the legal costs of the winner is based on a quotum, i.e. not on the real costs, but on a fictitious per-hour amount, which is lower than actual commercial rates (one notable exception is for IP infringements, where the full cost can be claimed).

Here in the UK it is incredibly common, especially with cases like injury at work. Known as 'No-Win No-Fee' in adverts.

It's getting less common now that local councils are actually fighting the claims.

Before suing a local council or the NHS was a guaranteed win, often out of court - so the lawyer couldn't lose and it was worth taking a no-win no-fee. Now that they go to court a lot of them are demanding the client pay a hefty insurance premium up front - of course that's not a 'fee'.

Isn't the fact that you are guaranteed to pay legal fees, which the poor will always find expensive, to be the greater obstacle to suing? I think the 'English rule' would encourage many poor people to litigate if they believed their case was strong.

> Isn't the fact that you are guaranteed to pay legal fees, which the poor will always find expensive, to be the greater obstacle to suing?

With correct insurance/lawyer-agreements, the poor can set it up so that they have no chance of paying anything. In effect, they sell part of the expected value of their suit to decrease their variance to the point that they do not pay money in any circumstance.

>I think the 'English rule' would encourage many poor people to litigate if they believed their case was strong.

Well, to be precise, it would encourage many poor people to litigate if their lawyer (or their insurance company) believed their case was strong. And isn't this exactly what we want? That justice is pursued?

With correct insurance/lawyer-agreements, the poor can set it up so that they have no chance of paying anything.

It's not obvious that loser-pays would prevent them from setting it up as well.

I have friend who cases against the police and others on a contingency basis.

Believe me, they do not have any capital to invest to indemnifying their client against a judgment. None.

The possibilities of losing a fair amount of money in case of this sort would essentially write the police a blank check to engage in whatever without threat of lawsuit.

I don't think the commenter I replied had these types of cases in mind. I think he meant "We don't get paid unless we get money for you" ambulance chaser type of lawyers.

Uh...

1. We're talking about changing laws, so it would affect all lawyers pretty much equally.

2. I don't think any supposed '"We don't get paid unless we get money for you" ambulance chasers' have a lot of cash either.

1. We're talking about changing laws, so it would affect all lawyers pretty much equally.

Can you elaborate on this point? I don't see how a change in laws must affect all lawyers pretty much equally at all.

2. I don't think any supposed '"We don't get paid unless we get money for you" ambulance chasers' have a lot of cash either.

Seems like they have enough cash to take out huge adverts on TV and in phone books.

There are plenty of ways of censuring policemen which don't involve offering plaintiffs a risk-free way of enriching themselves.

Yes this is exactly what we want. I said this implying it was a good thing.

Suppose your lawyer thinks you have a 90% chance of winning - against a neighbour who might run up a $1000 bill for legal fees, the same as you. Then it's worth the risk.

Now suppose you are up against a bank that can run up $10M in fees (or claim their in-house lawyers cost that) - now to be $1000 at risk you need a case that is 99.999% sure before the lawyer's insurance company will let them take it.

Perhaps an insurance system would develop where you pay a portion of your winnings to the insurer if the suit wins, and they pay out if it loses. In this way we can leverage market forces to help determine the validity of cases.

Exactly. I only suggested lawyers offering the insurance, but as you and someone else in this thread mentioned, it's also plausible for their to be dedicated agencies. It's not clear to me which would be more efficient.

> So, the strongest and most common objection against the English rule is that it would prevent the poor from suing even if they had a good case; they just couldn't afford a 10% chance of owing thousands of dollars.

The majority of cases where the litigant is "poor" involve contingency fees (the lawyer gets nothing unless they win), and contingency fees are considered unethical (to the point you'll get disbarred) in most European countries. I would add the issue where if contingency fees are any part of the lawyer's payment scheme, the lawyer would also be jointly and severally liable for the legal fees of the winning party.

I see three possibilities for this outcome - every case gets settled on the courthouse steps (as opposed to about half these days) or the lawyers fight everything to the bitter end (and there will be no more settling on the courthouse), and finally, much less litigation.

At the moment, the "rediculous" judgements that people complain about (one poster child is the McDonald's coffee case) are acting as a subsidy for lawyers. Without this subsidy, far less cases will be filed

I've strongly considered running with this idea as a ballot initiative in my state.

I would encourage you to look at the details of the McDonalds coffee case before using it as an example. Particularly, that the plaintif was hospitalized for 8 days and underwent skin grafts, and that McDonalds serves their coffee significantly hotter than culinary taste demands, despite hundreds of reported injuries and previous settlements.

That doesn't necessarily mean the outcome was justified, but it certainly wasn't a frivolous case.

She also didn't get millions. She initially won big but it was later overturned on the grounds that McDonalds was being singled out for being successful (i.e. having deep pockets to pay that kind of damage).

I know it was not frivolous. That does not stop people from attacking it as an example of "what is wrong with the world."

"But can't this be (mostly) solved by having the lawyers take on the risk?"

I suppose the stereotype of the trial lawyer as some deep-pocketed capitalist still prevails up to the present day. It's not so anymore. There's been a lawyer glut for some time and the lawyer who makes their living suing for the "little guy" or even the medium-sized-guy has no extra equity to invest in extra risk taking, they're mostly barely earning a living.

" That is, they risk their own time--but will do so only if they think there is a good case." Perhaps you could think about this - lawyers risk their own time because ... they have it, not necessarily having a whole lot of the business. A similar lawyer won't risk their own money because ... they have children to feed as well as offices to rent, etc...

But then it's not based on the chance of winning it's based on the likelyhood of a quick settlement and the amount they are likely to get.

Suing a council/schoolboard/hospital - likely to win (they don't defend strongly) and likely to be a big pay out (it's not their money).

Suing a large corporation with their own expensive laywers = not worth the risk.