Is that good news, or not? My new post at Cato at Liberty:
According to news reports last week, the legislature in Oklahoma passed, and Gov. Mary Fallin then signed, a bill whose wording directs judges to award reasonable attorneys’ fees and costs in cases of civil litigation. The provision was part of a bill on certain child abuse lawsuits, and its Senate sponsor said it was believed that the fee provision applied only to those cases until on a closer reading “it seems evident that it makes all civil cases … loser pays,” said Sen. David Holt. “But nobody caught that.”
As someone who has been writing in favor of the loser-pays principle since my first book, The Litigation Explosion, you might expect my reaction to this news (once I stopped laughing) to be positive. After all, there’s nothing wrong with a legislature enacting good policies through inadvertence. (For some legislatures, that seems to be the only way they do enact good policies.)
Sober second thoughts, however, will be less cheerful….
Whole thing here. More: Lowering the Bar.
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My first thought was that this was much ado about nothing, in that it was likely drafted as a “may award”, and therefore judges would likely NOT impose fees against losing consumers bringing claims against those (primarily corporations) they were not predisposed politically to favor, as that has been my experience over they years generally in “may award” cases. I see now that I was happily in error. It is a “shall”, not a may, though I expect many judges will still find reasons to exercise discretion in this regard, and many large defendants will forgo an appeal or reconsideration seeking attorney fees from a plaintiff who likely can’t pay it simply to avoid both the extra litigation expense, and more importantly, the bad publicity potentially associated with such an action.
What will happen is that the law will be challenged on legislative intent, thus adding still more fuel to the litigation explosion.
This is akin to a scrivener’s error and will unlikely be enforced. The legislature, however, should pass corrective legislation, and not leave it to the courts to deal with.