Sen. Banks has introduced SB 324 which would require a court to order payment of legal fees by the losing party to litigation. (Current law permits a court to order such fees where the losing party’s claim was frivolous. As a practical matter, it’s fairly rare for courts to order payment of such fees.)
The legislation has an interesting drafting provision that (so far as I know) was not permissible when I was drafting at Legislative Services:
The legislative services agency shall prepare legislation for introduction in the 2012 regular session of the general assembly to organize and correct statutes affected by this act.
I don’t know the rationale in this particular case, but my understanding of this sort of provision is that it’s usually included where the concept of a bill is reasonably simple but its implementation is going to kill a lot of trees by requiring alteration of a lot of code citations. Just to make a frivolous example, let’s say someone wanted to propose changing the title of “governor” to “supreme overlord.” The concept is fairly simple, but a bill to make it happen would be thousands of pages long as you pulled every code citation with the word “governor,” and changed it to “supreme overlord.” Better to see if anyone is interested before preparing a document that long. In this case, however, I’m not sure what sort of conforming legislation would be necessary, and its inclusion makes it look a little like legislators are being asked to buy a pig in a poke. “We’ll tell you what you voted for later.”
But, back to the premise itself. I certainly understand the frustration that can come with defending yourself against a case that’s too weak to prevail, but too strong to get dismissed quickly. I have one case in particular right now that (in my mind) fits this description perfectly. I’d love to be able to get a legal fee award for my clients.
As a practical matter, however, I think it would create an environment in which only the very rich and the very poor would be inclined to pursue their legal claims. The very rich could afford to take the hit for legal fees if their claim was ultimately unsuccessful. The very poor could also afford the risk – if you’ve got nothin’, you got nothin’ to lose. It’s those in the middle who would have to let others roll over their legal rights rather than risk drawing a bad jury and adding the other guy’s legal fees to their injuries. If there is a solution, I think it would involve a more permissive test for judges to use when determining whether a legal claim was frivolous. And, if the “loser pays” bill were to pass, I’d probably suggest that attorneys make clear to their clients, that the client is the one obligated to pay the bill. If you can collect from the loser after the litigation, super, but I wouldn’t want my fee to depend on whether I could collect from the opposing party. (Though, I can foresee a whole new arena of collections law cropping up from this.)