The U.S Should Switch to the "English Rule" or "Loser's Fee" Policy In All Courts of Civil Law
Debate Rounds (3)
The resolved for this Debate is that "The U.S should switch to the "English Rule" or "Loser's Fee" policy in all courts of civil law". As the pro side, I will stand in affirmation of this contention.
First some background on the topic is needed. "The English Rule" or "Loser's Fee" policy is a civil court system in which complete financial compensation be provided to the defendant for court costs and lawyer/attorney fee's. This policy is already in place in England, hence the name "English Rule". Basically, this policy is a measure to combat frivolous lawsuits- ie. the practice of starting or carrying on law suits that have little to no chance of winning. Frivolous lawsuits are suits carried out with any motive but earning money, with very little legal merit to them. This English rule policy would combat these lawsuits because prosecutors of frivolous suits will be more hesitant to file suits if they know they have to pay additionally charges to their opponent. It also helps aid the victims of frivolous lawsuits, by giving them compensation for their time.
Given this information I will now begin my argument.
First, I will start off my Debate with some factual information.
* An average of 82,000 civil lawsuits are filed daily in the U.S.
* The number of lawsuits filed yearly have increased by 90% since 2002.
* 87% of Americans in a national survey agreed that the justice system is used by many as a lottery, to start a lawsuit and see just how much they can win.
* Frivolous lawsuits alone are said to cost the United States $200 billion a year.
* Frivolous Lawsuits cost American businesses over $865 billion per year.
NOTE: Above information comes from Sixwise.com and survey mentioned is the "Harris Interactive" survey.
Given this information, it must be deduced that Frivolous lawsuits are indeed an issue today. Costs of 200 billion dollars to todays financially challenged government are certainly a big issue (That's 2.2 of the GDP of the U.S!), and costs of 865 billion dollars a year to American Businesses- who are greatly strained in the modern economy is crippling. So why, we must ask ourselves do the American people undergo such strains when such easy solution is available? The easy solution of which I speak of is the English Rule policy. The English policy will help greatly reduce such astronomical costs, and additionally, it will help discourage frivolous lawsuits which are a waste of time, and annoying.
There is additionally some moral merit to this policy. Is it not fair that if I charge you with a ludicrous case then I should have to pay for your attorney fee's? Aren't you entitled to compensation because I forced you to hire a lawyer? Additionally, today many Defendants agree to compromises simply because they don't want to put up with attorney fee's- but hiring an attorney to defend you in a court of law makes sense. You shouldn't consent to an agreement just because you're being forced to undergo costs of attorneys if you do. People should be able to make their decision on the law- and people shouldn't be able to bully their peers into giving them money by using frivolous suits.
Because of the aforementioned reasons I stand in strong affirmation of this bill. I would like to welcome the negation to this resolution. Good luck to you opponent!
While fundamentally I don't disagree with some aspects of his argument, I am opposed to the proposition that he has put forward.
1. Frivolous lawsuits
First of all, I must emphasise that the issue of frivolous lawsuits is greatly blown out of proportion by many, especially those who are not in the law.
The facts, however, are (quoting from http://www.maryalice.com...):
* the rate of federal lawsuits per capita has not changed since 1790
* According to a Department of Justice study published in August 2000, plaintiffs overall in the country's 75 largest counties won slightly fewer tort jury trials in 1996 (the last year for which numbers are available) than in 1992. Half of plaintiff winners in tort jury trials won $57,000 or more in 1992; in 1996 half of plaintiff winners won only $30,000 or more - a significant drop in those amounts awarded.
*When given, jury awards are generally small. The DOJ study said $30,500 was the median final award actually received by plaintiffs.
It should also be noted that there are penalties set out for attorneys who bring frivolous lawsuits to court. Perhaps a stronger system of enforcing these penalties would be of some benefit.
In addition, judges monitor all cases at all steps and have the discretion to dismiss an action that lacks merit at any time.
(source as above)
According to Pacific Business News (http://www.bizjournals.com...) the issue of frivolous lawsuits in America is a myth created by insurance companies and big business. Statistics demonstrate that the problem is in fact non-existent. According to the article, the numbers of lawsuits filed in personal injury, product liability and medical malpractice have been declining.
Finally (though not necessarily less importantly), the matter can be dealt with easily by way of pre-trial-conferences and/or arbitration. This simply involves the parties coming to court at a low cost, discussing the matter before a judge, culling the issues and obtaining the judge's view as to whether the matter should proceed or, if not, how best to settle it.
Of all the figures that my opponent proposes, only the final two bear relevance to the debate. The figures of $200 billion and $865 billion allegedly spent on frivolous lawsuits by the US Government and business respectively. It would be interesting to see the methodology employed in the study. Without a proper link, I am unable to do so and a figure of this magnitude would certainly require some investigation. However, even on the surface, there is a problem with these figures. They do not tell us what percentage of lawsuits are frivolous. The figures could, for instance, stem from a relatively few but exceptionally high awards granted by juries. And this of course can easily be handled by capping the amounts that juries can award (something that should be done in any event) on top of actual damages sustained by the Plaintiff.
2. The English Rule, its ramifications and issues
At the outset, my opponent has misrepresented the position as it stands in the United Kingdom (and other Commonwealth countries). Party-to-party costs (as the rule in existence is called) do not, contrary to what my opponent says, result in the defence always having its legal costs compensated. Rather, under the rule, it is the losing party (Plaintiff OR Defendant) who pays the winner's legal fees. With some qualifications, that makes sense.
There are a number of factors at play.
Firstly, there clearly is a need to combat frivolous lawsuits. Obviously a Plaintiff who knows that losing the lawsuit will result in having to pay the Defendant's legal costs is less likely to file a lawsuit unless he/she/it is of the view that the action has merits.
Secondly however, the opposite problem is also in existence. We want everyone to have equal access to justice, as much as is only possible. After all, justice is supposed to be fair. Now imagine a personal injury victim who has very little money. The injury was caused by an apparent negligence on part of a large corporation. Our Plaintiff has lost a leg, incurred humongous medical expenses and lost hundreds of thousands of dollars in future income. If he is to recover, he must take the matter to court. But, if doing so and losing (and there is ALWAYS a chance of losing in the courts) means that he'll have to pay the corporation's legal fees, he is less likely to take that action. He has already lost so much and the last thing he wants is to lose his house; the only thing he has left. The man is deterred from seeking justice. Why? Because of party-to-party costs. By the way, this is not some far-fetched hypothetical scenario. Plaintiffs in civil injury are very often people with very little money and they are very often taking on large corporations such as road authorities, office building owners or airlines.
Thirdly, the law is an evolving process. Lawyers, judges, politicians and the general public alike often wait for a test case to come before the courts so that some existing (but not overly clear) legal principle can be refined. This often involves cases where the Plaintiff's and Defendant's merits are very close and the issues to be decided are very fine. The legal position is unclear to begin with. We want our laws to be as clear as possible and we want to encourage common law to evolve. We want to encourage marginal cases to go before the courts in order to promote this process. But parties faced with the threat of having to pay the other party's legal costs will be naturally deterred from taking the (already marginal, due to the ambiguity of the legal principle in question) matter to court. And this is the one case where litigation really would assist everybody.
Fourthly, as noted above, it is big business and insurance companies that are screaming out the loudest about frivolous lawsuits (http://www.bizjournals.com...). And how would an introduction of a Party-to-Party system affect them? Barely at all. You see, these entities have the money to pay the opposition's legal bills if needs be. Those affected the most would be those who already struggle to get access to justice; the mom'n'dads and the poor. Party-to-party costs will preserve access to justice for the rich while unquestionably restricting the (already questionable) access to justice of the poor. And that's not justice.
I do not agree with my opponent that there is a substantial frivolous lawsuit problem. In the least, given all the evidence, the jury is out (to use a pun). In addition, requiring all Plaintiffs to cover the Defendants' legal costs would be unfair and would further restrict access to justice for those who are already struggling, while further protecting the interests of the wealthy.
If party-to-party costs were to be introduced at all, they would need to apply to the losing party whether or not it is the Plaintiff or the Defendant (as is in fact the case in the United Kingdom). However, as demonstrated above, even if that were introduced, the result would be a further restriction on access to justice for those who can least afford it to begin with. And what matters more? Justice to everyone or more money to the wealthy? I think we should all know the answer to that question.
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Vote Placed by Lightkeeper 5 years ago
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