There's never a bad time for a good idea.
Maybe that mantra is what inspired a respected think tank to call for adoption of a "loser pays" civil justice system across the U.S. this week. The idea comes on the heels of the election of a trial lawyer-backed U.S. President, and what many consider the most pro-lawsuit Congress ever.
"Loser pays" means that if you sue someone and don't win, you pay all or a portion of their legal fees.
Dead-on-arrival or not, it's worth considering how such a rule would impact places such as West Virginia, home to a litigation-industrial-complex that's unrivaled across the land. "Loser pays" would dismantle the complex in short order, thwarting a horde of ambulance chasers who often use their law degrees to hunt quick settlements for quick profit, rather than justice for the harmed.
According to the Manhattan Institute's report, "Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System," such a system would mean far fewer lawsuits, and even fewer frivolous ones. It also would encourage potential defendants to try harder to comply with the law, fearing that a loss means they would have to pay the plaintiff's attorney fees.
The rule is famously used in England. But it isn't without precedent in America. Author Marie Gryphon notes that in Alaska "loser pays" is the norm today, and there are 50 percent fewer tort claims than the national average.
So why not here? Imagine a world where downtown Charleston was home to actual businesses, not men in suits aiming to sue them; where personal injury firm television ads weren't bombarding your brain constantly; where the affluent folks in town were those who produced something other than complaints and depositions.
Switching to a loser pays system would come close to obliterating the mass-filing-always settling business model of some lawyers you read about on our pages. It would force them to take the right cases -- not ones in which they hope to squeeze a nickel, because that's the cynical secret of some members of the plaintiff's bar.
Privileged officers of our court should earn their living seeking justice for the deserving, not hunting for defendant marks who will pay to have them go away.
So it goes that trial lawyers are vehemently against "loser pays." Isn't that reason enough for us to support it?
