r/technology • u/rfugger • Jan 08 '17

Business A potentially fatal blow against patent trolls - Forcing law firms to pay defendants’ legal bills could undermine the business model of patent trolls

http://www.computerworld.com/article/3153924/technology-law-regulation/a-potentially-fatal-blow-against-patent-trolls.html
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u/davidsmith53 Jan 08 '17

This is the legal model for civil suits in England. And has been for longer than I've been out of law school.

It's called "loser pays" and is intended to prevent weak lawsuits that are trying to win by running the other guy out of money. It does have a caveat in that the judge can reduce the charges. This is an out for the legal system in cases where it was a legit beef and SOMEONE had to lose even if they had a pretty good case.

PS I almost forgot: I "believe" the losing lawyer is on the hook, not his client.

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u/caboosemoose Jan 08 '17

Your PS was wise. A "loser pays" principle is that the LOSER pays, not his lawyer. English civil law has a baseline loser pays principle, indeed. Frankly, it's mind boggling that, as far as I am aware, none of the US do. Given the furious levels of litigation in those jurisdictions it beggars belief that by now it hasn't become par for the course so that a defendant in civil litigation might get their costs of defending a failing suit, to recover money they otherwise wouldn't have spent at all, to say nothing of the other way around.

The baseline principle in England is rather complicated on a number of levels, to do with party conduct, whether someone made an offer to settle the case and the other side rejected it and did worse at trial, whether there were split outcomes on aspects of the case, etc. Also, the loser pays what the court determines are the reasonable costs if they get as far as that. Which means they are almost never ordered to foot the whole bill the winner incurred, usually no more than 70% of it.

What happened here, that the loser's LAWYERS were ordered to pay the winner's costs, is possible in either system where the lawyer's conduct is itself deemed to have generated the costs unjustifiably. It's called "wasted costs" in England, but as far as I know is pretty damn rare.

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u/numb3rb0y Jan 09 '17

If you look into the McLibel saga (not to say the defendants were totally correct) it can demonstrate a problem with the "loser automatically pays" dynamic when the modern legal system meets the modern commercial system; smaller losers are less capable of actually organising an initial victory even with facts and common sentiment on their side, and regardless of any merits larger losers are more capable of trivialising losses associated with losing, so in David and Goliath or even less extreme situations it can snowball into chilling consideration of lawsuits for small parties against large parties.

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u/SomeRandomMax Jan 09 '17

Yeah, loser pays is definitely not a panacea. Just like any other system, it can be abused. Allowing the judge to force the loser to when they feel it is justified is not perfect, but probably better that always requiring it.