Posted On: July 24, 2006, 6:58 pm CDT

Posted By: Andrew L. Weitz

Mr. Diesel: Bitter much? I wrote an article on the merits of Loser Pays 5-6 years ago. It appeared in TRIAL magazine. The problem with "loser pays" is that it disenfranchises the poor (economically) plaintiff. This plaintiff will be intimidated by this rule, and will fail to come forward to seek justice.

This is not because the case must be frivolous, rather it is because juries are unpredictable (regardless of what jury consultants want you to believe). There is already a hefty financial responsibility on plaintiffs: they are legally responsible for ALL of the expenses of their case. This includes everything from filing fees all the way up to the fees for experts (like DOCTORS, who charge $10,000 for a day in court--more in some circumstances). Complex product liability cases can cost as much as $100,000 or more to run. The cost is largely defense driven.

There IS a Federal Rule mandating loser pays. It works quite well, having at is base the notion of settlement.

As for contingency fees, well, we work for 3-5 years footing the bill for all the expenses out of our own pocket (that we theoretically get back from a losing client at the end of a case--this never happens, by the way, which is a disincentive to taking non-meritorious cases.

I have plenty more to write, just no time. There goes another ambulance I missed. Damn.