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Senate Bill 88, which would have required the “loser” in a civil lawsuit to pay the “winner’s” legal fees, has been withdrawn by the author, Sen.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