Texas governor: let’s move toward loser-pays

by Walter Olson on January 25, 2011

Right now Alaska is the only one of the fifty states with a serious loser-pays rule. If Texas adopted anything similar, the idea would get a massive boost nationally. [Gov. Rick Perry press release; Bob Dorigo Jones; Orange County Register; William Weaver, Indianapolis Star]

{ 5 comments }

1 bahmi 01.25.11 at 2:31 pm

Already losers pay. Ever see a taxpayer win?

2 Smart Dude 01.25.11 at 5:01 pm

Texas: the anti-California

Perry seems determined to make Texas the economic giant among states in the 21st century. The Texas Trial Lawyer Industry is having an apoplectic fit as we speak.

3 RecentLawGrad 01.25.11 at 10:30 pm

I’ve commented on it before, but it bears repeating again: to any opponents of this rule, it’s actually NOT crazy. For real. We have it up here in Canada and it seems to work pretty well. (I thought all the hippies wanted the US to be just like Canada?)

And, as always, nuance is important. There are different schedules of costs that are ordered depending on a variety of factors – merit, complexity, etc. – and they’re left to the discretion of the judge as an extra tool to encourage good behaviour and discourage bad. Waste 10% of a trial with nonsense? Pay the other side’s legal costs for that 10%. Were you a jackass? No costs for you. Cause a delay? Front the other side’s bills for anything caused by the delay. It’s easy and effective. Even people who are suspicious of leaving too much power to judicial discretion don’t seem to care much about it from anything more than a theoretical standpoint.

I’m sure trial lawyers’ groups have these fits and give off hypos of e.g. some poor working stiff suing RJ Reynolds, losing on a technicality, and being ordered to cover the fees of seven partners at Cravath. It doesn’t work that way.

4 Doug 01.26.11 at 12:05 am

Judges actually could do more now, but don’t. What makes anyone think that they will if these laws are enacted?

5 Chris 01.28.11 at 3:07 pm

I agree with Doug. There are fee shifting rules that judges could use, but they do not use or when they use them, they award much less than the winner actually paid. It will take more than a statute to change that attitude; it will take a wholesale change in judicial philosophy.

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