For those who are not first year law students, a tort is any civil wrong in which a damaged victim can seek legal redress. However, in the current social climate, liberals have sought to use the tort as a means of social, not legal redress. Personal injury lawyers, motivated solely by the greed of a payoff if successful, institute lawsuits for any and all reasons against “deep pockets” for “perceived” wrongs. These reprobates suffer nothing for filing the most spurious charges, even gaining admiration amongst your average Moonie for taking down another productive enterprise. In this discussion, we’ll stick to insurance companies. These frivolous suits also create incentives for doctors to do all sorts of unnecessary tests to prevent someone coming back later and saying “You should have tried everything”. It’s called defensive medicine. For this reason, lack of tort reform costs every man, woman and child in America $838 in 2008.
That’s not much compared to how much your insurance premiums are going to go up if the Obamacare Scheme passes, sure. But its still a lot of money.
Now, there has been some talk about Obama bringing in some notion of “tort reform”. This is nothing but a blatant lie. He told HHS it could move forward on some “pilot projects” for tort reform. This is like saying he’s all for nuclear power while shutting down the one place you can dispose of spent nuclear fuel in Yucca Mountain. Its completely dishonest.
In all its blatant hyprocrisy, radicals and progressives shout from their yogurt huts and spin classes about how “the rest of the world does it!” when it comes to socialized medicine. Yet, the “loser pays” system is also done throughout the rest of the western world, and they blithely ignore this reality. Socialized medicine and loser pays go hand in hand in all those countries. Why wouldn’t Democrats scream and cry about bringing it here? Because the Democrat party is beholden to the Trial Lawyer dollars ripped from the purses of shareholder grandmothers and grandfathers so they can elect more John Edwards.
And you want to know something really funny? A majority of Americans support serious Tort Reform, while a majority do not want the Democrat Health Care Bill. Even a broken watch is right twice a day. Progressives and radicals really have to try to be this wrong…
Democrats lately have trotted out the line that the CBO has rated the GOP tort reform and found it would only save one quarter of 1% of GDP, or something like that, and use it as a demonstration of how tort reform would do little. Whatever. This is not a defense of GOP tort reform. If that’s the case, shame on them. Tort Reform and saving every man, woman and child in America most or all of $838 a year and stopping unnecessary defensive medicine is not one quarter of 1%. Its a serious issue. And government spending should be counted as subtracting from GDP so its considerably higher actually, but that is another discussion.
Democrats jump up and down and wave their arms and cry that if trial lawyers aren’t allowed to collect those $400 million paydays, they wouldn’t be motivated to take those hard cases. Not true. If you forced the blood suckers to pay for those mendacious lawsuits they enjoy filing for no particular reason, they would still take on the lawsuit, and win if they had a case. That’s the reality in the rest of the civilized world. The defendants would not be held up every time someone wanted to extort money. You can argue that the company who allowed its defective product on the market knowingly shouldn’t even be in business. But you don’t have the right to hold up innocent shareholders to extortion without first proving guilt. That’s the American way.
Jesse Jackson is your average personal injury lawyer, showing up anywhere the proper percentage of the right minorities haven’t applied for jobs, or been approved for housing loans (never mind Asian minorities who don’t matter in almost any discrimination scenario). They show up, demand a certain amount of money or threaten to take legal action involving dozens of lawyers who clean up every time progressives demand a bribe. Legal action which can cost millions and even mean ruin for many companies and hurt for the little old ladies depending on those stock dividends to live. There is no compassion. No justice. No real hurt. Just threats and intimidation. What’s more, even when there is a real claimant, its not they who benefit. The average claimant receives only 46% of the judgement.
Democrats are completely unwilling to take the lead on important health reform. The clods instead are focused on this worthless attempt to manage more of Americans lives instead of on real problems. Republicans may not be up to the challenge. Independents and moderates must speak at the ballot box to this important issue.
Terry,
Sorry, once again the FACTS aren’t on your side.Tort reform, which almost half the states ALREADY HAVE, was supposedly passed to decrease the incentive for people with non-meritorious claims to file lawsuits. The REAL effect however,has been to decrease the ability of those with meritorious claims to file lawsuits. The courts already have many mechanisms to dismiss non-meritorious cases. There are motions to dismiss, summary judgments, and the contingency-fee agreement, and judges have the ability to issue directed verdicts.
Tort reform isn’t about cheaper health care, it’s about legislating away financial risk to insurers, which is why they exist in the first place. Oh, how unusual, Repug’s want legislation that FAVORS BIG INSURANCE COMPANIES OVER AVERAGE AMERICANS.
The liability “crisis” is a myth, malpractice payments account for less than 1% of the nation’s health care costs each year. Since 1987 medical malpractice insurance costs have risen 52% and medical costs have increased 113%. Tort reform is just a right-wing plot to have ordinary Americans GIVE UP their right to REDRESS, only fools would fall for this, I guess that explains Repug support for it.
From;
TPM/ Barbara O’Brien’s Blog
Seducing the States With Tort Reform
June 10, 2009, 10:30AM
Among the army of zombie talking points deployed to battle health care reform are canards about “tort reform.” For years the Right and its corporate sponsors forestalled health care reform by blaming rising health care costs on out-of-control malpractice suits. In fact, medical malpractice damage awards are less than one percent of the total cost of U.S. healthcare.
Limiting citizens’ Seventh Amendment rights to file personal injury lawsuits has been a winning issue for the Republican Party since the 1980s. “Tort reform” not only protects big corporations from responsibility and screws the little guy — a win/win right there — but it also turns trial lawyers (who tend to vote for Democrats) into the scapegoats for many of the nation’s ills.
However, in recent years the real fight over “tort reform” has been waged in the states. Well-funded astroturf organizations woo state legislatures with promises of cheaper health care. And through the magic of tort reform, they whisper enticingly, states also can have stimulated economies, lower costs of living and more jobs.
Then the bill is signed by the governor and the astroturf organizations move on, leaving behind laws that cap damage awards even for catastrophic losses and raise the burden of proof a plaintiff must hurdle to file his suit. In some cases people who have suffered real injury find they cannot file suit at all, but must submit to an arbitration system that’s set up to favor the defendant.
Oh, and about those lowered health care costs, stimulated economies and new jobs? More than half of the states have passed tort reform laws, some more than 20 years ago, so we have a number of “laboratories” in which to see what tort reform really does.
Fact: Tort reform has not lowered health care costs in a single state.
Limiting malpractice suits usually does lower the cost of medical malpractice insurance, which pleases doctors, but these savings are not passed on to the health care consumer. Tort reform doesn’t appear even slow down the rate at which health care costs are increasing.
In April Newt Gingrich penned an op-ed for the Philadelphia Inquirer in which he claimed tort “States that have enacted tort-reform measures have significantly improved access to health care, reduced costs, and strengthened economies.” As Exhibit A he trotted out a comprehensive tort reform law enacted by Texas in 2003.
The problem with that picture is that health care costs in Texas not only continued to rise after 2003; they rose more than in most of the rest of the country. In 2008, the Robert Wood Johnson Foundation found that Texans enjoyed the third fastest increase in health insurance premiums in the nation. And for many years Texas has led the nation in the percentage of its citizens without health insurance. The 2003 tort reform didn’t change that.
Fact: Significant numbers of physicians are not dropping out of medicine or moving their practices to “tort reform” states.
The American Association for Justice — yes, a trial lawyers’ association — looked at the recent “Physician Characteristics and Distribution” report from the American Medical Association. The data show no correlation between capping malpractice awards and attracting more doctors to a state. In fact, “Using data from 2007, the analysis concludes that states without caps actually have more doctors per 100,000 (319) than states that set limits (283), a difference of 13%.”
Fact: Tort reform’s ability to stimulate an economy and grow jobs is ambiguous.
Right-wing think tanks have no end of impressive-sounding white papers on the stimulating properties of tort reform. I’ve yet to find one that isn’t number salad, filled mostly with what I call NoMOs — numbers of mysterious origin. If you try to track down where and how these numbers were crunched, usually you hit a dead end.
Lawrence Chimerine and Ross Eisenbrey (Economic Policy Institute, May 2005) analyze some of the claims and say there is no evidence the tort system has reduced real wages and caused job loss, or that tort reform will result in more jobs. See also “The Tort Number Crunch.”
Fact: If you want to reduce the cost of insurance, reform insurance companies, not tort.
One of the ways tort reform is supposed to stimulate the economy is by reducing insurance rates, particularly liability insurance. However, the tort system is not the cause of insurance premium increases in recent years. The real reason is that insurance companies have taken a hit in investment income.
Insurance companies make most of their income from investments, not premiums. During a profitable investment cycles, insurance companies underprice their products and take higher-risk customers to get the cash for more investment. When Bu interest rates fall and the stock market plummets, premiums are jacked up, coverage is reduced, and insurance companies try to cover their losses by blaming personal injury litigation.
Fact: The tort system isn’t perfect.
I am not arguing that personal injury law in the U.S. is perfect, or that it is never abused. Further, there are a number of thorny issues that need to be resolved regarding specific types of claims, such as mesothelioma resulting from decades-past asbestos exposure, if the law is going to be fair to both complainants and defendants.
My argument, however, is that before citizens allow state and federal legislatures to reduce their rights to take grievances to court, we all need to clearly understand the arguments being made for tort reform. Most of those arguments are flat-out lies.
Supreme Court nominee Judge Sonia Sotomayor wrote in the Suffolk University Law Review, 1996, that placing arbitrary limits on jury verdicts in personal injury cases “is inconsistent with the premise of the jury system.” Instead, “the focus must be shifted back to monitoring frivolous claims, uncovering pervasive misrepresentation in court and educating the public that no system of justice is perfect.”
For the full article go to ;http://insurance-reform.org/issues/MedMalSystemCostsFactSheet2009F.
On top of all that, there’s already a relatively fail-safe “cap” system that takes place in actual practice…namely, juries tend to render very large judgements and then judges knock them down to reasonable levels.
That said, I wonder what Crowley thinks about those juries? He would have us believe he’s such a respecter of the Founders, of the Government they developed, which includes the jury system. Does Crowley think that juries are crazy when they find for “the little guy” who brings suit against insurance and pharmaceutical companies?
Obama touts AMA support of health care.
http://cnsnews.com/news/article/56702
AMA affirms that tort reform works
http://www.tortreform.com/node/447
Wow. So does the AMA know what its talking about, or… not?
Tort reform is about lower premiums. Don’t care what people pay? Don’t worry about tort reform. Want to continue to make the average man, woman and child pay an extra 800$ a year in defensive medicine. Fail to address tort reform.
Tort reform is not about holding insurance companies or hospitals accountable. There are dozens of mechanisms and regulatory bodies in place for that. Its about extortion for the pockets of the Democrat providers. Pursuing criminal negligence is one thing. Immunity for your get rich quick scheme is another.
The health insurance crisis is a myth since everyone gets medical care in this country anyway. What the current crusade says its about is the COST, but there are many ways to address that other than government control, which never works. But hey! If you don’t really care about the quality of outcome, have government get involved every time!
Here’s a little ditty that will sound eerily familiar.
—————-
America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
As other countries recognize, the arguments in support of the indemnity principle are overwhelming. They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements. Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people.
from http://overlawyered.com/2003/06/essay-on-loser-pays/
Skulls full of mush really want it both ways. They hate insurance companies and love trial lawyers and will say anything to get their destructive ways.
For more info to get informed yourself and find the FACTS that are out there…
Google “loser pays works”
By the by, do I read the first two comments correctly and derive that our resident socialist zealots are discussing the results of state by state effects and translating that to a national tort reform measure?? I mean… that’s almost well, freudian!! If it fails state by state then that means a federal measure is sure to succeed.
JUST LIKE THE REST OF THE WORLD.
Whatabunchayappers!
Tort reform is not about holding insurance companies or hospitals accountable. There are dozens of mechanisms and regulatory bodies in place for that
So is this a Republican proposal for more government? If people cannot sue to hold the insurance companies and doctors accountable the governmant should? Seem to go against the basic tenets of conservative thinking.
If we outlaw lawyers and let the government take care of the legal system, health care costs will magically come down? For some reason this does not seem likely!!
Perhap a commission that would allow review of cases thought to be fraudulent and the ability to apply real penalties to law firms (attorneys) that have brought multiple frivolous suits to be fined or disbarred would be a option to applying random caps on juries and the courts.
I’m sorry Jim, but thats a false argument. No one is prevented from suing with Loser Pays. That just means Trial Lawyers can’t invent any reason to bring a suit to trial and threaten everyone with legal costs, legitimate or not.
Why this left wing opposition to such a mainstream idea?
Terry,
“Loser pays” means that only the VERY WEALTHY could bring a lawsuit and that suits corporate interests and their lackys (aka; Repugs) just fine. Demonizing “trial lawyers” is one more way Repug’s get IGNORANT people to vote against their own interests.
Excerpts from book review by LawBlog of Stark and Stark;
“Blocking the Courthouse Door, How the Republican Party and its Corporate Allies are Taking Away Your Right to Sue.” By Stephanie Mencimer.
Ms. Mencimer writes: “The right to a civil jury trial – guaranteed by the Bill of Rights – is in serious jeopardy. Personal injury lawsuits, the kind most despised by Bush and his business supporters are on the decline…. The notion that Americans who take on deep-pocketed defendants or health care providers are making out like bandits is belied by numbers showing that plaintiffs in civil cases are taking it on the chin, losing far more often than they win.”
Yet the perception of the legal system as out-of-whack has proven highly resistant to correction by the truth. This is by design. The movement… is the result of a concerted and successful campaign by large corporations (especially the tobacco and insurance industry, but many others besides), to get this issue on the table and limit their vulnerability in the civil justice system. They have spent decades, and many millions of dollars on focus groups and Madison Avenue public-relation research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony grass root organizations and fed copy to journalists.
. Insurance companies, drowning in red ink from mismanagement and bad investments, hike insurance rates by huge sums and blame malpractice suits.
“This book is in part about the marriage of corporate desire for immunity from lawsuits and a new breed of GOP politics. It is also the story of how big businesses succeeded in taking bad public-policy proposals, packaging and stage managing them and selling them to the public through well-paid “experts” gullible journalists and intensely misleading propaganda all to the detriment of the average citizen, who still thinks that if he ever needs the legal system, it will be there for him. Unfortunately, as this book will show, in many parts of the country today, that is no longer the case.”
Excerpts from; In Defense of So-Called “Greedy Trial Lawyers”
Richard M. Alderman
The Houston Chronicle
October 27, 2002
Lawyer bashing, more specifically trial lawyer bashing, particularly greedy trial lawyer bashing, is definitely in season. During the past few days I have heard or read something that blamed trial lawyers for everything from the shortage of doctors and the high cost of insurance, to goods that cost more than they should, the unavailability of drugs and other products, and the nursing home crisis. You have heard them, “I promise lower insurance rates, better medical care, more jobs and safer products. My opponent took money from a greedy trial lawyer.” It appears that almost everything, except the Astros’ inability to get in the playoffs, seems to revolve around this one profession.
Like it or not, we need lawyers. All of us. We live in a country that regulates health and safety and resolves disputes through the civil justice system. Private trial lawyers make that system work. If your insurance company doesn’t pay when it should, your car doesn’t run as promised or your physician operates on the wrong leg, your recourse is to hire a lawyer and sue. We need lawyers, trial lawyers, sometimes even greedy trial lawyers. Just ask the doctors who have filed a class-action lawsuit against their HMOs.
True, a jury may sometimes award what sounds like a lot of money. But every juror that does so says the same thing: “We wanted to send a message not to do business that way.” We trust juries to determine the question of life or death; we should also trust their judgment about punishing a business that acts wrongfully.
Whether you have been defrauded by a stock broker, ripped off by a used-car dealer, injured as the result of a careless doctor, lost a parent to nursing home negligence or had medical problems because of a drug that didn’t work as promised, trial lawyers are your only hope for compensation. And more importantly, lawsuits and the threat of lawsuits are the only way the marketplace will regulate and stop such practices.
I concede that some lawyers are overzealous in the pursuit of a defendant, and some juries act out of malice or revenge instead of justice, but such cases are the exception not the rule. In fact, most outrageous trial court judgments you have read about were quietly reversed on appeal. The system usually works, and works well.
The so-called abusive tactics used by lawyers, such as class actions, punitive damages, and damages for mental anguish and pain and suffering, are often necessary to make sure that companies do not find it economically beneficial to continue an undesirable practice, simply including the occasional lawsuit as a cost of doing business.
Lawyer bashing costs us all. The consequence of focusing on lawyers instead of issues, and placing blame on one party to a system that we all need, is to deny us the meaningful debate that is necessary to elect competent public officials. More importantly, lawyer bashing often results in the deterioration of rights so many of us often need. Next time a politician starts criticizing trial lawyers, ask what is proposed as an alternative.
Alderman is a professor and Dwight Olds Chair in Law at the University of Houston Law Center.
#3,
From The Justinian;
If we enact “loser pays” in the civil justice system, wealthy defendants (or those with large insurance policies) would rarely be sued. When they are, plaintiffs would likely accept small settlements in order to avoid the risk of having to pay the defendant’s attorney fees. If you thought you deserved $100,000 from a pharmaceutical company, would you sue them if you knew that if you lost you might owe them $2 million dollars in legal fees?
Loser pays isn’t about being fair to winners or losers in a civil lawsuit. It’s about rigging the system so individual plaintiffs are afraid to sue corporate defendants.
My God, listen to the passionate defense of Trial Lawyers. Let me repeat, duncecap.
THE WHOLE REST OF THE WORLD HAS LOSER PAYS. WHAT MAKES YOU THINK YOU’RE SO SMART???
Or maybe perhaps, just like Health Care, America doesn’t HAVE TO DO what the rest of the world does???
Which is it???
Get the reality on Loser Pays. Don’t listen to the bogeyman fairy tales…
“Loser-pays’ makes lawsuits fairer in Europe. It could work here, too.
It’s “draconian” and “frightening.” Anthony Lewis of The New York Times finds it “extremely intimidating.” The Washington Post says it’s a “tremendous” barrier to legal action, and the American Bar Association has fits over its “attack on access to the courthouse.”
Almost everyone seems to agree that a loser-pays rule for law-suits, an idea floated in the GOP Contract with America, would be terrifying. Even in the modified form that passed the House of Representatives in March–which would require some federal litigants to pay a portion of legal costs if they turn down a settlement offer and do less well at trial–the idea has been attacked as overly harsh. How could the middle class–not to mention the lower class–use the courts if people who lost on a fluke had to pay their opponents’ legal fees? Wouldn’t they drop even valid suits?
A closer look shows that the actual practice of loser-pays abroad bears little resemblance to the bogey version used to frighten Americans around campfires. No system is perfect, and all litigation carries risks for the innocent, which is one of many reasons for society to discourage it. But as millions of well-informed Europeans see it, loser-pays isn’t nearly as terrifying as the way we sue in this country, where lawyers can lay your life to waste and the system will leave you no recourse at all.
Loser-pays is the standard in England, so it is sometimes known as the “English Rule.” It is thus often spoken of as if it were some Beefeaters-and-warm-beer eccentricity of the Sceptered Isle. But it has no special connection with England. It has prevailed for millennia in Europe, developing early in Roman law and spreading from there to the civil law systems that evolved all over the continent and became codified in France, Germany, and elsewhere around the time of Napoleon. It even developed in the church courts. Scandinavia, like England, does not trace its civil procedure to the Romans but nonetheless has loser-pays.
The rule’s ubiquitousness should give its critics pause. If loser-pays is impractical, why has it lasted in so many places for so long? If it’s rigid and historically contingent, how has it endured as philosophies of governance have come and gone? If it’s just a way for the rich to grind down the poor, what is it doing in such social democracies as Sweden, Denmark, and the Netherlands? If it grips the middle class with fear, how do the burghers of Geneva, Sydney, and Toronto stand it?
http://findarticles.com/p/articles/mi_m1568/is_n2_v27/ai_16971703/
Also…
America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Our editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. For a more extensive look at an argument for the loser-pays system, see chapter 15 of The Litigation Explosion, “Strict Liability for Lawyering”.
As other countries recognize, the arguments in support of the indemnity principle are overwhelming. They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements. Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people.
The principle in other countries
The leading British scholar of torts and accident law, the distinguished Patrick Atiyah of Oxford, observes that “the reality is that the accident victim with a reasonable case should be able to find a lawyer with equal ease in England and America.” (1987 Duke L.J. 1002, 1017; cited in Olson House testimony above)
In the United Kingdom, as throughout Europe, the general loser-pays principle enjoys strong support among social democrats and conservatives alike. In a 1999 debate in Britain’s House of Lords (January 21), in response to an objection that applying loser-pays in cases before employment tribunals might discourage workers from bringing claims against their employers, Lord Irvine, who serves as Lord Chancellor in the Labour government of Prime Minister Tony Blair, responds that “It can be argued… that one should discourage weak cases. Very often applicants bring weak cases before employment tribunals inspired by animus against their employers arising out of their dismissal. If the effect of [a costs] rule were to deter weak claims and prevent employers being vexed by them there is a highly respectable argument in favour of that change.”
Sometimes it is argued that loser-pays principles should be suspended in cases in which litigation is claimed to have gone on in the public interest, as a test case, or to procure a change in established law. While some loser-pays jurisdictions suspend the principle for what are viewed as true “cases of first impression” where there is no established law, most are skeptical about applying any exemption more liberally, as one sees in this 1996 case from Alberta, Canada.
Given the pervasive influence of U.S. ways of doing things, and the extraordinary success (by some standards) of the American bar, it is not surprising that a definite though minority bloc of practitioners and academics has arisen outside the U.S., particularly in English-speaking countries, that is favorably disposed toward the American rule on costs. The rationale offered by such advocates can itself be interesting, as when James Eck, an Australian professor who teaches at Washburn University in Kansas, calls for his country to emulate the American fee rule on the grounds that “An Increase in Litigation Would Be Good for Australia.” Prof. Eck writes that insurance rates are “artificially low” in Australia and foresees that abandoning loser-pays would engender an increase in litigation that would result in “an increase in the number of persons employed by the insurance industry,” which would, he believes, redound to the benefit of that country’s economy — a sentiment many will view as open to doubt.
Some jurisdictions have over the years weakened loser-pays provisions in ways that create important exceptions in a minority of cases. Perhaps the best-known of these rules, in Britain, denies fee recovery to prevailing defendants when they are sued by plaintiffs assisted by official legal-aid funds, a policy that many spokesmen for defendants have bitterly denounced as unfair and inconsistent with national tradition. Even in these cases, it seems, defendants benefit from the distinctive British pay-into-court system (see below). More recently, Britain has excluded an even wider class of injury claims from the rule. Although Ontario has somewhat watered down its loser-pays provisions for class actions, they are still far superior to the American rules in discouraging ill-founded litigation.
Special wrinkles: paying into court, legal expenses insurance
Two institutional features of the landscape in loser-pays countries deserve special mention: the complex of questions surrounding issue-splitting and offers of settlement, and the availability of legal expenses insurance.
It is common for litigation to involve multiple issues, some of which are resolved in favor of one party, others in favor of its opponent, or for a plaintiff to be vindicated as to liability but for his claim of damages to be upheld only in part. Most loser-pays systems explicitly empower the judge or other magistrate to split fees in these cases, usually with the objective of allocating each element of cost to the party whose position was defeated. Thus it is quite conceivable for a plaintiff to establish liability but for the fee award mostly to favor the defendant on the grounds that most of the cost of the litigation was spent arguing over issues on which the defendant prevailed. A different way of approaching the same general problem is practiced in England, where defendants can offer to “pay into court” a proffered settlement and are entitled to fees if a plaintiff turns it down and does less well at trial. Some countries combine elements of the two systems.
Just as liability insurance covers the risks of being a defendant in litigation, so nations with loser-pays have developed markets for what is called legal expenses insurance, which helps manage the financial risks of becoming a plaintiff including the chance of becoming liable for costs in the event of a courtroom loss. (This chance is in fact quite remote, since abroad, as in the United States, well over 90 percent of cases settle out of court before a final legal resolution; the primary influence of loser-pays is in the “shadow” it casts on the size and timing of this settlement.) Legal expenses insurance is typically available at quite modest cost, often as an added rider to homeowners’ or automobile policies. Its cost is modest in part because it can benefit from a self-financing fund: if the insurer correctly analyzes which cases brought in by its policyholder plaintiffs are worthy of being pressed, it will benefit from fee shifts paid by the defendants against whom it finances suits.
A series of country-by-country reports from the European Commission indicate that legal expenses insurance is “almost universal in Denmark,” “very common in Norway,” and “widely available in the Netherlands,” while “Germany has the largest LEI market of any EU country”.
http://www.pointoflaw.com/loserpays/overview.php
1. The rest of the world has loser pays
2. Alaska has loser pays.
3. NOWHERE… NOWHERE is there this outcry of the great unwashed being unable to get their day in court. The social democratic countries all have strong loser pay systems.
Now I simply can’t take anonster or anon seriously anymore. I mean, I know I sometimes put up an argument with Vern simply for the arguments sake. But I admit it. There isn’t one when it comes to Loser Pays. Its just spouting the Democratic line.
Very sad.
Well, what I gather is that the GOP’s “tort reform,” far from being Crowley’s dreamboat tort reform which would save 800$ for “every man woman & child” (by somehow abolishing defensive medicine?) – the GOP’s version is some kinda tort reform lite that will really only take at most 1% off our costs – not dramatically any bigger or better than Obama’s even more cautious version. So it doesn’t seem to be the most vital or timely thing to be arguing about right now.
And “loser pays” sounds like a pipe dream of Terry and his small cadre – interesting but arguable on its merits, and as politically unfeasible right now as the single payer system us progressives want. I would like to hear more about how it works in these other countries though.
You keep fighting for loser pays, Terry, and we’ll keep fighting for single payer.
Shouldn’t it read “Its just spouting the anti-social democratic line”?
If Alaska has “Loser Pays” when is Palin going to pay-up?
Well, you can stand in your small room with single payer in this country, I’ll join the rest of the world with Loser Pays Vern.
Good luck!
Well, you can stand in your small room with single payer in this country, I’ll join the rest of the world with Loser Pays Vern.
Yeah, I had been meaning to congratulate you, Crowley. I mean, on the HUGE mass movement out there for “loser pays.” I mean, you really can’t miss it. They were marching in my neighborhood this weekend, I had to take a detour. “Loser pays! Loser pays!” they chanted into megaphones. The spirit was positively infectious, I nearly joined in myself although I didn’t know what they were talking about until I read your article.
Oh wait – my bad! I’m thinking of the march of 60,000 LOSERS in Washington last Sept. 12. Scratch that.