Wednesday, August 20, 2008

Loser Pays: Good or Bad?

That's the question addressed in detail at NewTalk.org, with comments from people all over the spectrum.

--BC

http://lawprofessors.typepad.com/tortsprof/2008/08/loser-pays-good.html

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Loser pays runs a risk. Judges are indoctrinated to promote litigation, generating a need for their positions. If their cases disappear, they may bias their actions and influence the jury to favor the plaintiff more often. Defendants in Florida regretted the passage of loser pays, and sought to have it repealed.

I suggest a more accurate approach that would deter not just frivolous cases, but the far more frequent, weak case. It is the weak case, that is not dismissed, that frustrates the productive sectors of the economy and does the most damage to economic initiative.

End all immunities. Allow the opposing lawyer and the judge to get sued for legal malpractice. To protect them against weak or retaliatory lawsuits, require a certificate of merit from an expert in their specialty, confirming a deviation from professional standards of due care for the judge or for the opposing attorney. The current self dealt immunity is unlawful, violates many constitutions, and promotes irresponsible lottery playing, legal extortion, and just land piracy, with no consequences. Originally, immunity stemmed from the King's speaking with the voice of God. That is its sole rationale, and it violates the Establishment Clause.

The victims of lawyer and judge carelessness have the court house door slammed in their faces. If they do get to a malicious prosecution claim, it requires malice and scienter. It requires a confession by the adverse lawyer that he knew the claim was wrongful, and still filed it.

Rule 11 was gutted by Congress in 1993, with a 21 day take backsies. No one else but the lawyer gets a take backsies. Everyone else gets a lawyer gotcha, which cannot be corrected.

Legal malpractice claims by the adverse third party are thrown out for lack of privity (formal economic relationship). No one has had lack of privity as as shield against liability for 100 years. This privilege justifies self help by precluding any legal recourse.

Torts deter. Let them improve the quality of lawyering and judging. Those that believe that propaganda cannot continue to deprive judges and lawyers from those great benefits of torts.

Posted by: Supremacy Claus | Aug 20, 2008 6:18:33 AM

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