This comes up every single time, but it remains false. Loser pays does not mean that the loser has to pay a gigantic amount for the opponent's extremely expensive lawyers. Loser pays means that the judge determines what is a reasonable amount for the legal fees. Often the amount you have to pay for your opponent's lawyers is limited to what you paid for your own. So unless you hire extremely expensive lawyers yourself, you won't have to pay a huge amount if you lose. If a party wants a much more expensive defence they have to pay for that extra cost regardless of whether they win.

Almost every country except the United States uses this system.

Indeed. I'm living in a "loser pays" country, and it's definitely not a limitless tap. Judges quite often settle the loser's extra costs down to a more reasonable number.

Curious, what if the reasonable number is more than the lower could possibly pay? As in, they simply do not have the resources to pay it?

I'd say it's just a debt as any other then.

Not directly related, but personal bankruptcies aren't a thing here. If a debt can't be paid, it goes to recovery proceedings, and will stay like that until it expires in (generally) 15-25 years.

In some US jurisdictions you will eventually be sent to jail for failure to pay court fees.

> Almost every country except the United States uses this system.

Almost every country except the US uses agencies of their executive branch of government to enforce most labor, housing, discrimination, harassment, and civil rights laws. In the United States the enforcement of such laws is often split, with only very serious violations being handled by an executive agency and the more common violations simply creating a cause of action for a civil suit.

Even if the amount a loser has to pay is limited to what they themselves paid for their own attorneys it would still greatly discourage many people from bringing suits over labor, housing, discrimination, harassment, and civil rights against anyone who has significantly more resources than they do. If they spend a lot to get a top attorney and lose then they have to pay a lot. If they spend little on an attorney to limit the maximum they might have to pay then they have to worry that the other side will out lawyer them.

The problem of being out-lawyered by a richer opponent exists in both cases, so I don't see how that's an argument for or against either system.

The point about potentially discouraging lawsuits has a grain of truth in it, but not more than a grain. In the US you'd have to pay $X regardless of whether you win, and with the loser pays system you pay $0 if you win and $2X if you lose. It is at most a factor of two. The reality is that most people who can't afford $2X also can't afford $X. Consider what you get in return: (1) if you're quite sure you can win, you can sue at no cost (2) big companies can't just bully people into a settlement (like they attempted in this story). The net effect is that poor people who are clearly in the right gain the ability to sue, and rich entities who are clearly in the wrong lose the ability to extort settlements from poor people, but poor people who can afford $X but can't afford $2X lose the ability to sue if they aren't sure they can win. A very good trade-off if you ask me.

His first paragraph explains why the public policy implications of loser-pays are different for civil law countries: far fewer controversies are handled in the court system, because the executive branch is given much more power.

> judge determines what is a reasonable amount for the legal fees

That just gives financial unsupervised power to the judge, without any clear definition of involved terms. Which doesn't really sound like a good idea.

Somehow it seems to work quite fine. I can't say if judges here have some approximate documentation for acceptable hourly costs and work loads, or if it's decided case by case.

The US has elected judges, who have to campaign, and raise campaign money. The chances are non-nil that the "rich person" has, could or will contribute to the judge's campaign funds.

In practice, this is no different to having judges determine the amount of any damages awarded in a successful civil action or the amount of jail time or size of fine given to a convicted criminal. Making such assessments, taking into account the circumstances of each specific case, is a large part of the role of the judge in many legal systems.

Amount of jail time doesn't really benefit donors, but amount of damages and who pays does.

Sorry, I don't follow. Does "donors" have some technical meaning here?

Judges in the US run for office like politicians and thus have donors to their campaigns. Sorry for the confusion.

Ah, I see. Thanks.

What I don't see is how anyone who is inherently subject to popular opinion can possibly rule impartially in the interests of justice, but that's a different question.

I guess people feel the ability to vote out a judge balances versus the problems. It also probably keeps some flaky political appointees from becoming judges.

It could be done that it is not loser pays by default. Instead, if a case is won, and the case was deemed frivolous, only then could loser-pays be enacted.

But it still doesn't solve the idea that the "Law is more equal the more money you have." .

This is essentially how it works today, from my understanding.

If you lose and your suit was 100% without merrit, you can be sued for lawyer fees.

From what I understand, the problem is the bar for meritless is very very very high. Not sure how you legislate that. I think most lawsuits are meritless. A lawyer may have a very different opinion.

“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

A lawyer's salary depends on him not having the opinion that most lawsuits are meritless.

This only favors rich people when the case is questionable. So it slightly favors them. The current situation massively favors rich people.

How would a poor person be able to sue now? They don't have the money to hire a good lawyer. If the lawyer is working on contingency, then they are only going to take cases they are pretty sure they are going to win anyway, so they will still take cases where 'loser pays'. Granted, a contingency lawyer is probably going to need a higher guarantee of victory in a 'loser pays' system in order to agree to the case, but I don't think that would be a HUGE factor.

A small probability of a high (but known) fee is something that can in principle be insured against, no?

And then insurance companies will become the toll collecting gate-keepers of yet another domain. This time the entire judicial system.