Can we just get rid of the notion of court costs?

[Loren Pechtel]

https://www.clarionledger.com/story...ourt-fines-block-mother-from-child/802254001/

And bury this judge neck deep in manure while we're at it?

 

[bilby]

Courts cost money. That's not a notion - it's a fact. Court staff, security guards and judges have to be paid, and court buildings, utilities and infrastructure are not free of charge either.

You could, perhaps, have taxation fund all of the costs of court cases; But you could expect to see a very sharp increase in both frivolous lawsuits and levels of taxation if this were to be implemented. Is that what you are seeking?

It seems like a bit of an overreaction to over-reach by one (now retired) judge, whose (probably unconstitutional, and certainly unlawful) order has been overturned.

 

[Loren Pechtel]

Courts cost money. That's not a notion - it's a fact. Court staff, security guards and judges have to be paid, and court buildings, utilities and infrastructure are not free of charge either.

You could, perhaps, have taxation fund all of the costs of court cases; But you could expect to see a very sharp increase in both frivolous lawsuits and levels of taxation if this were to be implemented. Is that what you are seeking?

It seems like a bit of an overreaction to over-reach by one (now retired) judge, whose (probably unconstitutional, and certainly unlawful) order has been overturned.

Court costs make sense in financial cases. Otherwise, though, they often act as a barrier to justice.

Perhaps you get back the costs if you prevail.

 

[bilby]

Courts cost money. That's not a notion - it's a fact. Court staff, security guards and judges have to be paid, and court buildings, utilities and infrastructure are not free of charge either.

You could, perhaps, have taxation fund all of the costs of court cases; But you could expect to see a very sharp increase in both frivolous lawsuits and levels of taxation if this were to be implemented. Is that what you are seeking?

It seems like a bit of an overreaction to over-reach by one (now retired) judge, whose (probably unconstitutional, and certainly unlawful) order has been overturned.

Court costs make sense in financial cases. Otherwise, though, they often act as a barrier to justice.

Perhaps you get back the costs if you prevail.

It is routine for judges to require the loser to pay the winner's costs in the Commonwealth system; is that not the case in the US? It seems to me like it would be a fundamental principle of a just system that this would occur in all but exceptional cases.

 

[LordKiran]

Court costs are not the biggest inhibitor to our justice system. A lack of infrastructure and manpower are. (Courthouses and judges)

 

[Trausti]

Court costs make sense in financial cases. Otherwise, though, they often act as a barrier to justice.

Perhaps you get back the costs if you prevail.

It is routine for judges to require the loser to pay the winner's costs in the Commonwealth system; is that not the case in the US? It seems to me like it would be a fundamental principle of a just system that this would occur in all but exceptional cases.

The American Rule is that each party pays its own fees and costs, unless a statute or contract provides otherwise.

 

[Angra Mainyu]

It is routine for judges to require the loser to pay the winner's costs in the Commonwealth system; is that not the case in the US? It seems to me like it would be a fundamental principle of a just system that this would occur in all but exceptional cases.

The American Rule is that each party pays its own fees and costs, unless a statute or contract provides otherwise.

I'm probably missing something, but that looks like a bad rule to me.

Suppose A fails to meet her obligations with B, under their contract X.

If B goes to the courts, then it seems at most B will be compensated for the loss minus what B needs to pay in fees and costs. So, even in the best case scenario (i.e., the wronged party goes to the courts and wins), it seems that there is no full compensation. Why not make the person who failed to meet their obligations pay, unless there is some specific reason (e. g., good faith and due diligence on the part of the loser, etc.) to make an exception?

And that's when the system is working (if it's like that). In other cases, B simply cannot afford to go to the courts, which is even worse, or the costs would be more than what A owes B.

But if this is a traditional system, there probably is something going for it. Do you know what it might be?

 

[LordKiran]

The American Rule is that each party pays its own fees and costs, unless a statute or contract provides otherwise.

I'm probably missing something, but that looks like a bad rule to me.

Suppose A fails to meet her obligations with B, under their contract X.

If B goes to the courts, then it seems at most B will be compensated for the loss minus what B needs to pay in fees and costs. So, even in the best case scenario (i.e., the wronged party goes to the courts and wins), it seems that there is no full compensation. Why not make the person who failed to meet their obligations pay, unless there is some specific reason (e. g., good faith and due diligence on the part of the loser, etc.) to make an exception?

And that's when the system is working (if it's like that). In other cases, B simply cannot afford to go to the courts, which is even worse, or the costs would be more than what A owes B.

But if this is a traditional system, there probably is something going for it. Do you know what it might be?

People are less likely to sue if the barriers to entry are high and will seek other means of arbitration. Pretty good if your legal system is overloaded like ours.

If you ask me, private citizens shouldn't be suing each other over minor/petty grievances anyway.

 

[Angra Mainyu]

I'm probably missing something, but that looks like a bad rule to me.

Suppose A fails to meet her obligations with B, under their contract X.

If B goes to the courts, then it seems at most B will be compensated for the loss minus what B needs to pay in fees and costs. So, even in the best case scenario (i.e., the wronged party goes to the courts and wins), it seems that there is no full compensation. Why not make the person who failed to meet their obligations pay, unless there is some specific reason (e. g., good faith and due diligence on the part of the loser, etc.) to make an exception?

And that's when the system is working (if it's like that). In other cases, B simply cannot afford to go to the courts, which is even worse, or the costs would be more than what A owes B.

But if this is a traditional system, there probably is something going for it. Do you know what it might be?

People are less likely to sue if the barriers to entry are high and will seek other means of arbitration. Pretty good if your legal system is overloaded like ours.

If you ask me, private citizens shouldn't be suing each other over minor/petty grievances anyway.

I'm not sure about that. Let's consider two systems:

1: The loser pays the winner's fees.
2: Each person pays their fees.

Now, suppose Bob is considering to sue Alice, and has the money to pay his legal fees and costs. If Bob's case is solid, then sure it will be less expensive to sue on system 1. But then, that lowers the cost for the person who is right.
On the other hand, if Bob does not have a case, then it's more expensive for him to sue on system 1, since he will have to pay his fees and costs and those of Alice (or else, pay his and go bankrupt if he has no more money). So, it seems to me that frivolous lawsuits are generally (there are other specific factors, but generally) less expensive on system 2, at least for a person who can pay his legal fees and costs.

What about people who don't have enough money to pay their legal fees and costs?
In that case, system 1 allows them to sue if they're right (there would be lawyers willing to do the job and get paid by the loser), whereas system 2 disinfranchises them, unless they can get a lawyer to do work for free, which sometimes happens, but not always or usually.
Granted, among the poor, system 1 will also allow for a greater number of frivolous lawsuits, as some lawyers will be willing to take the chance even if their case is pretty bad. But system 2 will just deny them access to a legal remedy, which is worse.

Now, this is a very general idea. There are specific situations that might compensate and change the dynamics. But an overloaded system does not seem a sufficient reason, and it's not clear that the system would be more overloaded on system 1 than 2, since barriers to entry are higher for people willing to sue without good reason, unless perhaps they're too poor to lose anything.

Still, the matter could be tested, by trying for a while and see whether the system becomes more or less overloaded. A limited test could be done by introducing system 1 only on some matters, to see what happens.

 

[LordKiran]

People are less likely to sue if the barriers to entry are high and will seek other means of arbitration. Pretty good if your legal system is overloaded like ours.

If you ask me, private citizens shouldn't be suing each other over minor/petty grievances anyway.

I'm not sure about that. Let's consider two systems:

1: The loser pays the winner's fees.
2: Each person pays their fees.

Now, suppose Bob is considering to sue Alice, and has the money to pay his legal fees and costs. If Bob's case is solid, then sure it will be less expensive to sue on system 1. But then, that lowers the cost for the person who is right.
On the other hand, if Bob does not have a case, then it's more expensive for him to sue on system 1, since he will have to pay his fees and costs and those of Alice (or else, pay his and go bankrupt if he has no more money). So, it seems to me that frivolous lawsuits are generally (there are other specific factors, but generally) less expensive on system 2, at least for a person who can pay his legal fees and costs.

What about people who don't have enough money to pay their legal fees and costs?
In that case, system 1 allows them to sue if they're right (there would be lawyers willing to do the job and get paid by the loser), whereas system 2 disinfranchises them, unless they can get a lawyer to do work for free, which sometimes happens, but not always or usually.
Granted, among the poor, system 1 will also allow for a greater number of frivolous lawsuits, as some lawyers will be willing to take the chance even if their case is pretty bad. But system 2 will just deny them access to a legal remedy, which is worse.

Now, this is a very general idea. There are specific situations that might compensate and change the dynamics. But an overloaded system does not seem a sufficient reason, and it's not clear that the system would be more overloaded on system 1 than 2, since barriers to entry are higher for people willing to sue without good reason, unless perhaps they're too poor to lose anything.

Still, the matter could be tested, by trying for a while and see whether the system becomes more or less overloaded. A limited test could be done by introducing system 1 only on some matters, to see what happens.

Plenty of lawyers take of cases without an upfront payment. They just take more out of the settlement if you win. But this of course all assumes that Bob's grievance with Alice cannot be arbitrated without the need for a courtroom.

 

[Angra Mainyu]

I'm not sure about that. Let's consider two systems:

1: The loser pays the winner's fees.
2: Each person pays their fees.

Now, suppose Bob is considering to sue Alice, and has the money to pay his legal fees and costs. If Bob's case is solid, then sure it will be less expensive to sue on system 1. But then, that lowers the cost for the person who is right.
On the other hand, if Bob does not have a case, then it's more expensive for him to sue on system 1, since he will have to pay his fees and costs and those of Alice (or else, pay his and go bankrupt if he has no more money). So, it seems to me that frivolous lawsuits are generally (there are other specific factors, but generally) less expensive on system 2, at least for a person who can pay his legal fees and costs.

What about people who don't have enough money to pay their legal fees and costs?
In that case, system 1 allows them to sue if they're right (there would be lawyers willing to do the job and get paid by the loser), whereas system 2 disinfranchises them, unless they can get a lawyer to do work for free, which sometimes happens, but not always or usually.
Granted, among the poor, system 1 will also allow for a greater number of frivolous lawsuits, as some lawyers will be willing to take the chance even if their case is pretty bad. But system 2 will just deny them access to a legal remedy, which is worse.

Now, this is a very general idea. There are specific situations that might compensate and change the dynamics. But an overloaded system does not seem a sufficient reason, and it's not clear that the system would be more overloaded on system 1 than 2, since barriers to entry are higher for people willing to sue without good reason, unless perhaps they're too poor to lose anything.

Still, the matter could be tested, by trying for a while and see whether the system becomes more or less overloaded. A limited test could be done by introducing system 1 only on some matters, to see what happens.

Plenty of lawyers take of cases without an upfront payment. They just take more out of the settlement if you win. But this of course all assumes that Bob's grievance with Alice cannot be arbitrated without the need for a courtroom.

Lawyers take cases without an upfront payment but not if they reckon they are not going to get paid. So, if the person is poor, it seems to me on system 2., it's very difficult that they will get a lawyer. What's the motivation for the lawyer? Granted, there are lawyers who work for free. But that's not a reliable way of accessing the judiciary.

That aside, my point is a general point about access to the judiciary. People who break contracts will not generally have an incentive to settle the case out of court if their opponent can't afford to go to the courts anyway. But for the reasons I mentioned, it seems that all other things equal, system 1 allows more people to be able to access a judicial remedy when they are right, while there is no good reason to think there will be more frivolous lawsuits. At any rate, as I mentioned, it is testable.

 

[LordKiran]

Plenty of lawyers take of cases without an upfront payment. They just take more out of the settlement if you win. But this of course all assumes that Bob's grievance with Alice cannot be arbitrated without the need for a courtroom.

Lawyers take cases without an upfront payment but not if they reckon they are not going to get paid. So, if the person is poor, it seems to me on system 2., it's very difficult that they will get a lawyer. What's the motivation for the lawyer? Granted, there are lawyers who work for free. But that's not a reliable way of accessing the judiciary.

That aside, my point is a general point about access to the judiciary. People who break contracts will not generally have an incentive to settle the case out of court if their opponent can't afford to go to the courts anyway. But for the reasons I mentioned, it seems that all other things equal, system 1 allows more people to be able to access a judicial remedy when they are right, while there is no good reason to think there will be more frivolous lawsuits. At any rate, as I mentioned, it is testable.

Meh this is just one more problem advancements in automation and AI development will likely solve. Lawyers are one profession you can pretty much count on being extinct sooner rather than later.

 

[Angra Mainyu]

Lawyers take cases without an upfront payment but not if they reckon they are not going to get paid. So, if the person is poor, it seems to me on system 2., it's very difficult that they will get a lawyer. What's the motivation for the lawyer? Granted, there are lawyers who work for free. But that's not a reliable way of accessing the judiciary.

That aside, my point is a general point about access to the judiciary. People who break contracts will not generally have an incentive to settle the case out of court if their opponent can't afford to go to the courts anyway. But for the reasons I mentioned, it seems that all other things equal, system 1 allows more people to be able to access a judicial remedy when they are right, while there is no good reason to think there will be more frivolous lawsuits. At any rate, as I mentioned, it is testable.

Meh this is just one more problem advancements in automation and AI development will likely solve. Lawyers are one profession you can pretty much count on being extinct sooner rather than later.

I don't know about sooner rather than later, but I think automation and AI development will likely solve it eventually (as long as no catastrophic event happens before that).

 

[bilby]

I'm probably missing something, but that looks like a bad rule to me.

Suppose A fails to meet her obligations with B, under their contract X.

If B goes to the courts, then it seems at most B will be compensated for the loss minus what B needs to pay in fees and costs. So, even in the best case scenario (i.e., the wronged party goes to the courts and wins), it seems that there is no full compensation. Why not make the person who failed to meet their obligations pay, unless there is some specific reason (e. g., good faith and due diligence on the part of the loser, etc.) to make an exception?

And that's when the system is working (if it's like that). In other cases, B simply cannot afford to go to the courts, which is even worse, or the costs would be more than what A owes B.

But if this is a traditional system, there probably is something going for it. Do you know what it might be?

People are less likely to sue if the barriers to entry are high and will seek other means of arbitration. Pretty good if your legal system is overloaded like ours.

If you ask me, private citizens shouldn't be suing each other over minor/petty grievances anyway.

Observation of how the two systems actually work out strongly suggests that the American system leads to more law suits that the 'loser pays' system.

Observation always trumps theory.

 

[bilby]

I think a system that benefits the party that is in the right is a better idea than a system that favours the party that has the deepest pockets.

But that thought is probably un-American.

 

[LordKiran]

I think a system that benefits the party that is in the right is a better idea than a system that favours the party that has the deepest pockets.

But that thought is probably un-American.

Hey that's all fine and good, but if you're going to make lawsuits more feasible for more people can we agree it might be wise to increase legal services available? Because one thing the poor can't afford is delays.

 

[bilby]

I think a system that benefits the party that is in the right is a better idea than a system that favours the party that has the deepest pockets.

But that thought is probably un-American.

Hey that's all fine and good, but if you're going to make lawsuits more feasible for more people can we agree it might be wise to increase legal services available? Because one thing the poor can't afford is delays.

The 'loser pays' principle does not, as far as I can see, make lawsuits more feasible for more people.

It just makes them less feasible as a means for wealthy parties to sue poor ones, regardless of who is legally right; and more feasible as a means for people who are clearly in the right to sue people who are clearly in the wrong.

Observation of the frequency with which people resort to the courts to settle disputes strongly suggests that the American system leads to more lawsuits than the Commonwealth system.

Under a 'loser pays' system, nobody wants to go to court unless they are very confident that they have a strong case - because if they lose, their opponent is unscathed, and they are facing both sets of costs.

If the winner still has to pay his own costs, a wealthy litigant can fight a losing battle just to screw his opponent over by sending him broke. It's an effective bullying tactic, for those who can afford it; but it ain't justice.

 

[dismal]

Filing frivolous lawsuits and offering to settle for below the cost of defending them is a full time industry these days. Loser pays is a potential way to reduce this.

 

[Loren Pechtel]

Meh this is just one more problem advancements in automation and AI development will likely solve. Lawyers are one profession you can pretty much count on being extinct sooner rather than later.

I disagree. The problem is that AIs do not fare well with deliberate deception.

Please note the following rifle:

It's 3D printed, the deception works even if you move the camera around. It's a tiny deviation from a real turtle.