On Instapundit, Glenn Reynolds touches on a matter in which true justice does seem to have prevailed. But this is indeed an issue which has long made me of the view that of the many splendid and admirable things about the United States, the US system of justice is most certainly not one of them.
As a sheer matter of practical justice, it cannot be right that the winner of a legal action can nevertheless be reduced to penury by having to pay legal fees, particularly if they were not the party which brought the action. Unlike most of the rest of the western world, who operate upon the principle that the looser of an action pays the legal costs of the winner, in the United States both parties to an action are responsible for their own legal costs regardless of who wins or loses… thus a person can be unsuccessfully sued and still end up bankrupted by their own lawyers as they cannot always recover their costs.
I cannot help thinking that the overweening power of the Bar in American politics is the reason this has never been addressed. The ‘pay your own costs’ principle is a licence for speculative law suits of dubious merit, a veritable ambulance-chaser’s charter, removing the cost incentive to only litigate when the merits of the case make success highly likely. Surely introducing the ‘looser pays both sets of legal fees’ principle across the board in the USA would, at a stroke, reduce the flood of absurd ’emotional distress’ and ‘tripped on a mat’ litigation as well as making it less attractive for well funded individuals and corporations to use the threat of bankruptcy-through-legal-fees to intimidate those who are less well funded. Also, less wealthy defendants who nevertheless have solid cases can approach far more capable (and thus expensive) defence counsel as upon seeing off the accusations in court, they can recover costs from the other side.
