Instead of creating yet another special case for government officials, the solution for the US problem is to go and take some ideas from Europe. In Germany, all costs associated with a lawsuit have to be paid/reimbursed by the losing party. This quickly solves the "I know I won't win, but lets ruin the other guy" problem.

Well, the German legal system is actually different in a bunch of ways:

1. They don't use precedent, judges rule based on legislation alone.

2. Germany criminal and administrative law uses an "inquisitorial" system where the judges perform fact-finding and question witnesses (in contrast to the "adversarial" system used in common law countries)

3. German lawyers have their fees set by the "RVG" (Act on the Remuneration of Lawyers) and even if the winner chose fancy lawyers that charge more than set by the RVG, the loser only pays the amount set by the RVG.

4. Contingency fees were completely banned until recently, and are very rarely used today.

5. There are no punitive damages awarded under the German legal system - only compensatory damages.

Between these factors, German trials cost a lot less - so legal fees don't ruin you financially even if you lose.

I am interested in how the no precedent thing works. Doesn't it have potential to make things widely inconsistent?

In Poland where we have similar rules in place it's just purely theoretical principle. In practice precedent is very important and learning about what other courts ruled ("orzecznictwo") is what lawyers spend their time on. It's as important if not more than the letter of the law in practice.

Source: my ex was a lawyer and we have a number of lawyer friends (judges, attorneys, corporate lawyers).

Higher courts can make fundamental decisions which are binding for other courts; however these are not precedent as they only clarify how the law is to be interpreted in general.

There are indeed inconsistencies in the decisions of the lower courts, and in some cases (like defamation suits) with no clear geographic reference this can lead to forum shopping.

Edit: An important point that I forgot to make is that in cases where a lower court might deviate from the usual legal practice, it may be required to ask a higher court to decide in the matter precisely to avoid grave inconsistencies. So case law is never completely irrelevant in Germany.

It's too bad the US is too hard headed to adopt some of these practices.

You're absolutely right! The US is pretty hard-headed on any number of subjects, reasonable or otherwise. A lot of these are great ideas.

Formalizing into law the system where a judge decides what is a reasonable amount of attorney's fees definitely sounds like an improvement! Though I can see where revamping the fundamental structure of a legal system could be challenging, time-consuming, and probably messy.

I don't think it is just being hard headed. I don't know of a practical non-disruptive way to change the basis of the US legal system away from common law.

Edit: not that I support the legal status quo, I just don't see the public bipartisan will to make that level of systemic reform

That's pretty much what I mean by hard headed, no one is willing to consider change. Not an individual, just the people that create laws and policies.

Yeah no kidding. Common law is perhaps at the heart of how rich Americans understand the state. And then the overrepresentation of lawyers in legislatures just makes this worse. Either way, this stuff is completely sacrosanct for no good reason.

>this stuff is completely sacrosanct for no good reason.

Evolved law systems, like common law, do have some elegance that most people tend to overlook. Here's one article I found very interesting:

http://www.law.nyu.edu/sites/default/files/ECM_PRO_060886.pd...

This rule change makes it potentially very expensive to sue large corporations. They are already more likely to win because they can afford larger, better resourced legal teams. Now the little guy also needs to pay for that legal team when they lose? You might see most people opting not to sue Comcast, McDonalds, Amazon to avoid being financially ruined.

It’s probably just best to leave it to the discretion of the courts to decide whether one side pays the costs of the other. Better than legislating that the loser always pays.

It's not black and white. If the court takes the case in Europe, it probably has some merit. If the little guy then loses, the court will then often decide it needed to be tried and both parties will cover their own expenses.

Your right.. People generally don't sue as much here in northern europe(only know the rules are like op described in Germany, Denmark, Norway and Sweeden, might be the same for all of europe) in fear of loosing, but i for one prefer it this way, much less lawsuits flying around. And also it goes both ways, as the little guy you are also less likely to be sued.

And let's be real, how often do a normal person sue big corps like the ones you mention and actually win ?

It is already difficult to sue large corporations in general: In other words, there is no change. People already decide not to sue many companies so they aren't financially ruined.

Obviously, the discretion of the courts hasn't been consistent nor has it always been fair. Hence, rules.

There are additional rules that lock how much lawyers can cost per case, based on "case value", to limit megacorp lawyers to set up fantasy fees.

That is already how it works in US civil litigation.

No it's not. Both because courts don't always give you costs, and because even when they do award costs, actually collecting is tough, and finally, because courts don't always award the full amount of your costs.

Source: https://www.nolo.com/legal-encyclopedia/attorney-fees-does-l...

"To further this goal, the losing side doesn’t usually pay the winning side's attorney's fees. In the United States, the rule (called the American Rule) is that each party pays only their own attorneys' fees, regardless of whether they win or lose."

US courts can award costs, and they do in many circumstances. But it is not automatic by any means. Even in countries where costs are awarded automatically, actually collecting on those costs is difficult - I personally know people who have successfully defended themselves and are in exactly this situation in the EU.

I have an outstanding judgment for over $100k against a home builder that my lawyer told me I have about a 1% chance of ever collecting on. This isn’t even a situation where I can file a lien; the company is out of business because of their shoddy business practices and the former owners are broke.

Meanwhile I had to pay my lawyer. I would have been better off doing nothing, and in hindsight I would not pursue the case.

This is a fairly common pattern among home builders. Start John's Construction, make some money, live the high life for a few years, homes start to show signs of issues, go bankrupt, then start Jon's Construction and begin the process over again.

That’s why I just went ahead and fixed the issues my house had — I assumed any other new home would have similar issues, and I couldn’t sell the place without remediating them anyway. I had expected to recoup at least some of the cost though.

Costs and fees are completely different.

You are over complicating the issue and misunderstanding it. Quite simply the loser of a law suit typically bears the costs of court fees and legal expenses for both parties unless a different arrangement is negotiated. How high those expenses are are irrelevant to this issue and are generally not known before or during trial.

I have sued someone in the US and had this discussion with my lawyers. What you are saying simply is not true in the US. It's such a well known feature of the US legal system that it's even called "American Rule": https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...

Did your attorneys discuss fees with the opposing party prior to the suit? If not that’s why. This is common practice. It’s also why Google sent Oracle an extremely large legal bill when Oracle lost its first lawsuit over Java APIs.

You replied to:

> In Germany, all costs associated with a lawsuit have to be paid/reimbursed by the losing party.

with:

> That is already how it works in US civil litigation.

An optional agreement between parties is absolutely not the same as a mandatory, by-default, loser pays system. And yes, in my case getting an agreement like that was certainly going to be impossible.

Also, re: Google and Oracle, the payment was after petitioning the judge - as often happens - and those costs were awarded because the lawsuit was particularly pointless. Yet even then they did not include millions of dollars in discovery costs, so Google got much less than 100% of their legal costs: https://www.tweaktown.com/news/25667/oracle_must_pay_google_... I do not believe you are correct in saying there was any prior agreement.

Civil suits are optional. Discussions between parties in civil suits are mostly optional. The only thing about that isn't optional are the procedures and a final ruling on the matter. In most cases of civil suits the lawyers negotiate the expenditures going in. This is why many plaintiff lawyers won't accept every case that comes their way.

Nonsensical as it might be, "costs" does not mean net expenditures, but rather costs associated with filing fees, document production, etc. The loser may well pay "costs," but attorney time, which is by far the biggest expenditure in a lawsuit, is not included.

Note that in my comment, when I said "costs" I was referring to the loose layman definition, not the legal definition. Depending on the circumstances if you are awarded anything, it could be for the costs you refer to, attorney fees, both, or some other mixture (it's particularly frequent to see judges award less than what attorneys charged on the basis that you overpaid).

And of course, nothing at all. And yes, I agree that having only some types of costs awarded and not others can easily be absurd.

It absolutely isn’t. The loser pays system is extremely uncommon in American civil practice.

Sure but then you create a new problem, which is that there much less of an incentive to settle.

The current system is not perfect but if does very clearly incentivize people not to incur legal fees in excess of the actual amount of money being argued about.

The vast vast majority of legal cases are settled through negotiation.