Making Lawsuit Reform Fair

by Richard Stallman

The Republican party wants to make it harder for you to sue a
business-and easier for a business to sue you.  
	The Republicans follow a simple strategy: find a real problem
that Americans are concerned about, then propose a "solution" designed
to help business and wealthy people while shifting the burden to the
rest of us.
	The Republican proposal for lawsuit reform is an example of
this. Americans really do sue too often. Frivolous lawsuits clog our
courts, drive up expenses for everyone, and are used for intimidation.
The Republican "solution" is supposed to discourage frivolous
lawsuits, but its real effect is to penalize whichever side has less
money to spend on lawyers.  The Republican proposal is that whoever
loses a lawsuit should pay all the legal fees of the winner-no matter
how large or small. There is no limit on how much the other side can
make you pay. If you are involved in a lawsuit against a business, the
business can spend a lot on legal fees. And that means they can make
you pay a lot if you lose. You can't do the same to them unless you
are rich.
	This causes a problem whenever an individual sues a business.
No matter how strong your case is, there is a chance you will lose. If
the business spends a million dollars on legal fees, you must pay a
million dollars if you lose. If you can't take this risk, you can't
	What about when a business sues you? Once again, loser-pays
favors the business. If you can't afford the risk of paying its legal,
you must give the business whatever it demands.
	Businesses often file frivolous lawsuits against individuals
to harrass them for political activity they do not like. These suits
are called SLAPPs-Strategic Lawsuits Against Political Participation.
The loser-pays plan will actually encourage SLAPPs. If the business
spends a million dollars on lawyers' bills, that adds a million
dollars to the size of the threat. With a larger threat, more people
will decide they don't dare defend themselves, SLAPPs will be more
effective, and that will encourage them.
	The unlimited-fees system forces the two parties in the suit
to make a side bet over legal fees. But it's not an equal bet. Suppose
your legal bill is 100,000 dollars and the business's bill is a
million. Then you must bet a million dollars while the business only
bets 100,000 dollars. You have to give the business 10-to-1 odds! If
you have an 80% chance of winning the suit-that's a fairly good
case-you stand to lose from these odds.  Our justice system already
gives a large advantage to whoever has more money. The unfair bet on
legal fees would add to this advantage.
	To make loser-pays fair, we must put a cap on what the loser
has to pay toward the winner's legal fees: no more than what the loser
spent on legal fees. Capped fees make the bet on legal fees a fair
bet: the amount you collect for legal fees if you win the suit always
equals the amount you pay for legal fees if you lose the suit. This is
true for both sides, with no exceptions.
	With the unlimited-fees system, you would have to pay the
business a million dollars if it wins the suit. With the capped-fees
system, you would only have to pay a hundred thousand if you lose (the
amount you yourself spent on legal fees). Doubling your legal bill if
you lose is painful enough, but not unbearable.
	Most Americans cannot afford even their own legal fees in a
lawsuit. To sue, you need a lawyer who is willing to work on a
contingency basis, being paid only if you win.
	How would the capped-fees system apply to contingency fees? If
you lose the case, your legal bill is zero, so zero is how much you
have to pay towards the winner's legal fees. For fairness, the other
side should pay zero toward your legal fees if you win. Thus, the
capped-fees system has no effect on contingency fee lawsuits. This is
acceptable, because the contingency fee itself discourages frivolous
lawsuits-lawyers won't take a case if they expect not to get paid.
	Contingency fees lead to abuse today when combined with other
problems in civil law-especially the "deep pockets" rule. But there is
a plan to change this rule, so there is no need to attack the
contingency fee system. The contingency fee is the only way the
ordinary citizen can go to court, so we must not take it away.
	Pro-bono legal services would not count for the capped-fees
system; if your lawyer doesn't charge you for the case, you won't have
to pay for the opponent's legal bill. That is acceptable, for we need
not fear lawyers will clog our courts by taking many cases with no
	Because Republicans present their unfair proposals as
solutions to real problems, we must be careful to respond with more
than "No." We must present real, honest, fair solutions to show why
the Republican solutions are unfair. For the problem of frivolous
lawsuits, the fair solution is the capped-fees solution.  

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