[FoRK] Challenge for Zee and Stephen

Stephen D. Williams sdw at lig.net
Mon Jun 30 19:20:00 PDT 2008

Jeff Bone wrote:
> On Jun 30, 2008, at 6:34 PM, Owen Byrne wrote:
>> I'd like to step forward as one of the little guys. Reasonably sure I 
>> have a case, the cost to seek redress was well beyond my means, 
>> especially with the threat of paying legal costs for both sides. The 
>> phrase "crush like a bug" pretty well seemed how it was going to play 
>> out. And my impression was that it was pretty well SOP for the other 
>> side to screw the little guy, because they know they have more legal 
>> resources, and they routinely use it to screw people who don't.
> I would argue that if you were persuaded by this argument, then either 
> you or your attorney was insufficiently convinced of the merits of 
> your case... manpower alone on the other side of the table doesn't 
> create or destroy merit, it merely creates overhead --- which 
> ultimately they'll pay for if you win. I.e.,
Ah, there's one misconception you have. The US does not generally follow 
"Loser Pays", as detailed below. To be able to get attorney's fees paid, 
there has to be a law allowing it. I don't know whether judges can just 
decide to award them in general. I think they would have to decide it 
fell under some frivolous lawsuit catchall law. In the US, unless you 
are going to put together a class action suit, you can't recover your 
own costs even if you win. That pretty much already limits the 
feasibility of many cases, outside small claims. It is also the reason 
that attorneys almost aways require a large retainer up front. That's 
the reason that companies can get away with breaking the law for years: 
it's not worth it for any individual to fight. That of course is part of 
the rationale for class action suits. Ironic to your view of desired 
tort reform, it is noted below that some would be reformers want us to 
go with Loser Pays, which of course would increase lawsuits.

>     Loser pays
> Most countries operate under a "loser pays" system, sometimes called 
> the English Rule <http://en.wikipedia.org/wiki/English_Rule>. Under 
> the English rule, the losing party pays the successful party’s 
> attorney fees (please note that the award is referred to as "attorney 
> fee" as the fees do not belong to the attorney, but to the prevailing 
> party), as well as other court costs. The United States is a notable 
> exception, operating under the American Rule 
> <http://en.wikipedia.org/wiki/American_Rule>, whereby each party bears 
> its own legal expenses. Some tort reform 
> <http://en.wikipedia.org/wiki/Tort_reform> advocates propose adopting 
> a "loser pays" rule in the United States. For example, a judge 
> <http://en.wikipedia.org/wiki/Judge> may say: "I am ruling for the 
> plaintiff <http://en.wikipedia.org/wiki/Plaintiff> on the amount of $ 
> <http://en.wikipedia.org/wiki/%24>(amount of money 
> <http://en.wikipedia.org/wiki/Money>) plus all court costs and 
> attorney's fees."
>     Awards of attorney fees in the United States
> A number of federal laws provide for an award of attorney fees for a 
> prevailing plaintiff <http://en.wikipedia.org/wiki/Plaintiff>, such as:
>     * Class actions <http://en.wikipedia.org/wiki/Class_action>
>     * Civil rights <http://en.wikipedia.org/wiki/Civil_rights>
>       violations, see Civil Rights Attorney's Fees Award Act of 1976
>       <http://en.wikipedia.org/wiki/Civil_Rights_Attorney%27s_Fees_Award_Act_of_1976>
>     * Freedom of Information Act
>       <http://en.wikipedia.org/wiki/Freedom_of_Information_Act> violations
>     * Copyright <http://en.wikipedia.org/wiki/Copyright> and patent
>       <http://en.wikipedia.org/wiki/Patent> cases
>     * Antitrust <http://en.wikipedia.org/wiki/Antitrust> actions
>     * Lemon law <http://en.wikipedia.org/wiki/Lemon_law> cases
>     * Suits against the federal government where the position of the
>       government was not "substantially justified"
The Class Action Fairness Act of 2005 
<http://en.wikipedia.org/wiki/Class_Action_Fairness_Act_of_2005>, which, 
among other provisions, regulates the fees that can be awarded in a 
class action, was passed in response to concerns that courts were not 
adequately overseeing the award of such fees.

> "crush like a bug" is no threat of outcome, it's only FUD and overhead 
> in the process. OTOH, the merits of your side of the case --- THAT's a 
> real threat. It seems likely that the attorney for your side did the 
> cost-benefit analysis and decided that it wasn't worth it to him to 
> pursue, and subtly persuaded you that this was the case.
Not true in the US. In all typical cases, net = wronged amount - 
attorneys - court costs - time - travel - other fees. There is little or 
no chance of getting fees covered by the defendant even in a win. There 
may be little or no chance of punitive damages. That's the typical 
> The concern Stephen raised about judicial corruption and prejudice is 
> well-founded. That's a problem, a serious monkey wrench in the whole 
> thing.
> jb

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