Feb 012013

Indiana Senate Bill 88, which would have required the “loser” in a civil lawsuit to pay the “winner’s” legal fees, has been withdrawn by the author, Sen. Mike Delph, R-Carmel. Hallelujah.

Why was this a bad idea? First, not all cases have a clearly defined “winner” and “loser” when all is said and done. Sometimes, each party wins on at least one issue, and loses on at least one more. Sometimes nobody “wins,” especially in divorce and guardianship cases.

Second, assuming the reason for this change was to prevent frivolous lawsuits, this purpose is already served by IC 34-1-32-1, which allows a court to award attorney’s fees to a  prevailing party, if it finds that another party brought or maintained a frivolous, unreasonable or groundless claim or defense,or litigated the action in bad faith.

Third, just the possibility of being forced to pay the other side’s fees – even if there is a really, really good case – would have a chilling effect on bringing lawsuits altogether, including those with merit. This is especially true for those with the most to lose – individuals who have already been taken advantage of, who are already loathe to rock the boat again and call attention to their problems, who are on the brink of financial ruin (if they haven’t already gone over) and the only way they can afford to get help for their problems is to seek out pro bono legal counsel, agree to contingency fee arrangements, or proceed  without an attorney at all and hope for the best. Agreed, not all cases should be brought, and not all problems are best resolved through the judicial process. However, if we take away the last hope of those who have been victimized, scammed, or treated unfairly, then those that victimize, scam, and act unfairly will only continue to gain power and resources at the expense of those that don’t.

Finally, this is America.  The English require the loser to pay – which is why it is called the “English Rule.”  The rule that requires each party to pay its own fees and costs is called the “American Rule.” Let’s keep it that way.

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