Once again, the British are not coming to the state otherwise known as the “Crossroads of America” – at least when it comes to the British rule known as “loser pays.” In fact, it was kind of shock to see Governor Mike Pence, an active Tea Partier, even supporting a bill like this. As we noted before, loser pays is a "British rule that our founding fathers had no interest in bringing here, that requires you or me to pay the enormous hourly lawyers fees and court costs of a big corporation that we sue, if we happen to lose our case."
Boy, if I ever heard of a reason to have a Tea Party! Just this week, we noted in an earlier post that the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial. (The Seventh Amendment eventually resolved the problem.) The right to jury trial has been secured not only by the U.S. Constitution, but by every state as well. But “loser pays” laws pretty much eviscerate that right. Just this week, we covered the impact of a type of “loser pays” rule in Texas, where a woman, a double amputee who has already tapped her retirement savings just to survive, has been unable to even get into court against seemingly negligent ER doctors who caused her to lose her legs, because of Draconian tort reform laws there. Now, she may have to pay some of the defendants' legal fees. And possibly lose her home, as a result.
Interestingly, a similar bill was defeated years ago in Indiana. According to the Indianapolis Star,
Sen. Mike Delph, who had filed the measure at the request of Gov. Mike Pence’s administration, said he withdrew Senate Bill 88 after hearing concerns from several legislators, including from Sen. Brent Steele, chairman of the Senate Judiciary Committee. The problem with the bill is simple, Steele said: “It doesn’t work.”
[D]etermining just who is the loser in a lawsuit is difficult — and impossible in “no fault” divorce cases.
Steele said that in a lawsuit where someone is seeking $40,000 damages and the defendant wants to settle for $20,000, both sides can come out winners if the jury awards $30,000. The plaintiff, he said, gets more than they were offered and the defendant pays less than was initially sought.
Never even thought of that angle before.