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Mark,
The downside of the 'loser pays' English system is it limits access to
the courts to the rich, be it individual or corporations, who can
tolerate a loss as a part of the normal course of business. The less
generously endowed individual (financially!) may as not even bother
bringing the claim to the attention of a badly-behaved Corporation,
since they can tell them to 'go pound sand', and if you don't like it,
'sue me'. Of course, what individual can risk litigation if a loss,
even on a technicality and despite the merits, will bankrupt the
individual every time. So, the loser pays system is attractive on the
face of it, but it has a serious downside of limiting access to the
judicial system, even for cases that have substantial merit.
Chuck
-----Original Message-----
From: Lancair Mailing List [mailto:lml@lancaironline.net] On Behalf Of Marvin Kaye
Sent: Saturday, August 26, 2006 10:45 AM
To: Lancair Mailing List
Subject: [LML] Re: Tort
Posted for "Mark Sletten" <marknlisa@hometel.com>:
Brent,
I too have thought long and hard about product liability laws. It's far too
easy in our litigious society to force honorable, competent people out of
business for the sake of personal gain.
My response has been to suggest a system such as that used in the UK - loser
pays. It's pretty simple really; the loser of the case pays all the costs of
litigation.
It would be a self-regulating system. Lawyers considering a contingency case
will think long and hard before bringing a weak/frivolous suit if they know
they will pay the other team when they lose. In our current system there's
nothing to lose except their time.
Likewise, lawyers of defendants with weak cases (i.e. it truly IS a faulty
product) will strongly consider settlement to avoid additional costs. This
makes it easier for those truly injured by a faulty product to recoup loses.
In the current system, the lawyer gets at least a third of any settlement -
I can see an individual negotiating his/her own settlement without legal
representation under "loser pays." Probably why US lawyers are terrified of
it...
Either way, the number of cases actually going to court would surely
diminish!
Mark
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