American legislatures since the 1970s have widely employed “one-way” fee provisions — under which courts award fees to prevailing plaintiffs, but not to prevailing defendants — as a way of encouraging plaintiffs and their lawyers to bring a maximum of legal action; especially when the fee shifts are generously calculated, such provisions also put strong pressure on defendants to settle potentially defensible cases rather than take the risk of a big fee award that may exceed the sums in controversy. Now Wisconsin lawmakers are thinking of making the playing field a bit more level by reining in one-way awards, especially those that exceed the underlying dispute; another way of approaching the issue, of course, would be to make the shifts two-way. [Rick Esenberg]
3 Comments
awesome.
Ideally, the USSC would have ruled a long time ago that one-way attorney fees were a violation of the “equal protection of the laws,” but the current unfair system is now deeply embedded in “stare decisis.”
Now, maybe Congress should look at doing the same for 42 USC 1988.