Doesn't something like the loser paying winner's cost already exist?
I've heard about it, but I don't know much about law. My lawyer once told me, here in my country, it was possible for the winner to ask the loser for compensation, but that had many "ifs". But I have no idea how it works in the US. Does it exists at all? Anyone with legal experience could shed a light?
As I understand the system, there are usually two mechanisms in place to offset this:
First: The loser pays costs as determined by the court , usually on a preset schedule. It's not like the winner gets to send the loser an invoice for infinity bajillions and they just have to pay up.
Second: You can apply for having the government pay if you loose. You have to file a petition explaining how (a) there's a benefit to society in having the case heard and (b) how you're not financially fit to bear the costs yourself.
Even better - loser pays the winner the exact amount they paid their legal team. By their own admission "at arm's length" so to speak, that was the value of the litigation to them.
In theory, I like the idea that the winner's legal fees are just another item in play when the judge decides how to award damages.
In effect, this is exactly what happens in most loser-pays systems. Loser-pays usually doesn't mean literally that the winner automatically gets all of their fees paid, no matter how abusive their practices during the case or how disproportionate their expenses. More often it means that the judge can award those fees and there is some sort of presumption in favour of the winner of the case not losing out financially.
What you actually want is "big guy pays" - if the loser has more than, say, two or three times the annual gross (before tax deductions or writeoffs) income of the winner, they pay the winner's legal fees. "If the winner spent more on legal fees" might also work, although I'm worried about how that would interact with contingencies and retainers.
I like the Spanish mechanism: Loser pays is possible, but it is definitely not the rule. For the loser to have to pay costs, you have to show that the suit was filed in bad faith, typically with a completely baseless claim. This occurs a good enough percentage of the time to deter people from suing at random, but it's not in any way guaranteed to happen every time you lose: There are plenty of civil suits are there where both sides have legitimate arguments, and where everyone eats their own expenses.
There's also rules about what reasonable legal costs are, to deter major bill padding.
Loser pays a proportion of the winner's costs equal to the loser's costs (i.e. loser spends £100 in legal fees, winner spends £1500 in legal fees, loser has to pay £100 of the winner's costs, leaving the winner with £1400 to pay) has some nice properties.
Not in the U.S. The winner is entitled to legal fees from the user only extraordinary circumstances (i.e., where punitive damages or sanctions are also appropriate) or in family law cases (i.e., divorces).
I've heard about it, but I don't know much about law. My lawyer once told me, here in my country, it was possible for the winner to ask the loser for compensation, but that had many "ifs". But I have no idea how it works in the US. Does it exists at all? Anyone with legal experience could shed a light?
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