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loser pays

Now posted: a recent Federalist Society podcast of a discussion that includes me, Texas attorney E. Lee Parsley, Texas lawprof Ronen Avraham, Judge Dennis Jacobs as moderator and Dean Reuter of the Federalist Society introducing. Running time is an hour and you can listen directly here. More from me on the new Texas law here.

After we passed along a recent report that Beaumont, Texas lawyers had filed 59 lawsuits the day before the state’s new “loser-pays” package of litigation reforms was to take effect, Texas attorney Brooks Schuelke responded on Twitter as follows (re-formatted and edited for clarity), saying that the issue wasn’t the loser-pays provision, but a separate “responsible third party” provision that set a malpractice trap for lawyers that delayed: “The responsible third party provisions allowed a defendant to name a party, and then plaintiff could join them even if the statute of limitations had expired. The law was changed to remove the ability to sue regardless of the statute of limitations. But defendant can’t name a party not disclosed in discovery. The amendment means we have to file suit long before the statute of limitations expires to send discovery asking defendant to name who it might name. So many cases nearing the statute of limitations had to be filed before the effective date of the change or else they could be victim to the amendment.”

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I’m on record as noting that the Texas bill labeled as “loser pays” doesn’t do nearly as much to revamp litigation incentives as its name implies, but if lawyers rushed to beat the deadlines on its provisions, they must be expecting it to make at least some difference. [Chamber-affiliated Southeast Texas Record]

More: Texas attorney Brooks Schuelke offers a different explanation for the last-minute rush.

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It’s a welcome development, but as I told Reuters, by the time it got through the legislative process there was less there than the name had promised. More at Cato. [Reuters link keeps changing, fixed for the moment]

August 4 roundup

by Walter Olson on August 4, 2011

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May 31 roundup

by Walter Olson on May 31, 2011

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Loser-pays, long the law in Alaska, is stirring significant interest in Texas these days. Ryan Brennan of TPPF makes a case for the reform [PDF] and discusses some of the choices involved in structuring it.

P.S. Tracking for S.B. 13 and H.B. 274. And more on pending Texas omnibus liability reform legislation from Texans for Lawsuit Reform and its Balance Texas Courts project.

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March 30 roundup

by Walter Olson on March 30, 2011

  • “Woman Sues Adidas After Fall She Blames on Sticky Shoes” [Lowering the Bar]
  • Texas lawmakers file loser pays proposals [SE Tex Record] Actual scope of proposals hard to discern through funhouse lens of NYT reporting [PoL] Marie Gryphon testimony on loser-pays proposals in Arkansas [Manhattan Institute, related]
  • Google awarded patent on changing of logo for special days [Engadget via Coyote]
  • “Civil Gideon in Deadbeat Dad Cases Would Be ‘Massive’ Change, Lawyer Tells Justices” [Weiss, ABA Journal, Legal Ethics Forum]
  • Amateur-hour crash-fakers in Bronx didn’t reckon on store surveillance camera [NY Post]
  • “Plaintiffs’ Lawyers in Cobell Defend $223M Fee Request” [BLT]
  • Show of harm not needed: FDA kicks another 500 or so legacy drugs off market, this time in the cold-and-cough area [WaPo]
  • “Wal-Mart v. Dukes: Rough Justice Without Due Process” [Andrew Trask, WLF]

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]

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December 20 roundup

by Walter Olson on December 20, 2010

  • Texas Gov. Rick Perry may urge the state to take a step toward loser-pays [NJLRA]
  • “FCC push to regulate news draws fire” [The Hill]
  • Could litigation on behalf of Madoff victims get more than all their money back? [Salmon, more, NYT, Above the Law]
  • “Chevron Says Documents Show Ecuador Plaintiffs Worked With Government” [Dan Fisher/Forbes, more]
  • Organized trial lawyers expect to fare less well in next Congress, but prospects for actual liability reform remain slender [Joseph Weber/Wash. Times, Matthew Boyle/Daily Caller]
  • Mount Laurel rulings in New Jersey (towns given quotas to build low-income housing) described as “libertarian”, I express doubts [Hills, Prawfsblawg]
  • Criminal law’s revolving door: “prosecutors turn up the fire and then sell extinguishers” [Ribstein, TotM]
  • The wages of unconstitutionality: a Utah attorney’s curious fee niche [five years ago on Overlawyered]

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July 3 roundup

by Walter Olson on July 3, 2008

  • Texas probate and estate lawyers seldom prosecuted when they steal funds, clients told they should just sue to get it back [Austin American-Statesman investigation]
  • About a third of the way down the center strip, then just a bit to the right, you’ll find us on this much-linked map of the campaign season’s most influential websites [Presidential Watch '08]
  • Given the enormous liability exposure, would a doctor rationally want a major celebrity as a client? [Scalpel or Sword via KevinMD]
  • The loser-pays difference: Canadian franchisees pursue failed class-action claim against sandwich shop Quiznos, judge orders them to pay costs of more than C$200,000 [BizOp via ClassActionBlawg]
  • Annals of extreme incivility: judge condemns “heartless attack” at deposition on opposing lawyer’s pin honoring son killed in Iraq [Fulton County Daily Report]
  • You keep an open wi-fi connection at home and your neighbor uses it to download music improperly. Are you an infringer too? [Doctorow via Coleman]
  • As you’ve probably heard if you read blogs (but maybe not otherwise), one Canadian “human rights” tribunal has dropped action against Mark Steyn and Maclean’s; another still pursuing case [SteynOnline]
  • Prison-overcrowding lawsuit could lead to early release of 27,000 California inmates [TalkLeft]
  • “He absolutely would’ve gotten this DOJ job but for the anti-liberal bias … and he can’t land any other jobs?” [commenter KenVee on lawsuit over politicized Department of Justice Honors/Intern programs, Kerr @ Volokh, background]

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