‘“Loser pays” doesn’t” – Herb Kritzer; little frivolous litigation

I previously wrote about legal systems where the losing side pays the costs of the winning side (May 31, 2005 post). An article by Herb Kritzer, a professor of political science and law at the Univ. of Wisconsin (Legalaffairs, Nov./Dec. 2005 at 20), dissects some of the downsides of this policy. [I recognize that proponents of the system, or some variation of it, are many.]

Under Alaska’s rules of civil procedure, losers have to pay a portion of the winning side’s costs. “A study of the rules found that rather than reducing litigation, they often increased the amount of settlements, because the expenses at stake increased the value of a winning case.” Further, to the contention that loser-pays will reduce the number of merit-less suits, Kritzer writes: “No research has shown that a substantial portion of lawsuits is frivolous.” Later, addressing a common target, he adds, “Research has shown that at least half, and probably more, of the potential cases brought to contingency fee lawyers are declined.” (at 21)

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