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A legislative proposal for the courts

A legislative proposal for the courts

Here is a radical cost-savings proposal that will reduce the size of the government, even the playing field, accommodate tort reform, and should be supported by everyone.

In this Country, we generally abide by the "American Rule" when it comes to the law and legal fees. This makes sense, given that we are in America. If the politicians in Springfield wanted to make a simple (but radical) change in state law that would reduce the size of government while actually evening the playing field and be somewhat of a sop to the tort reform movement, then they should adopt the "English Rule".

The American Rule is that in civil cases,  each side pays for their own attorney fees. There are, of course, many exceptions to this general rule. There are several types of lawsuits where the losing party may end up paying part or all of the other sides attorney fees. But, for the most part, win or lose, each side pays its own attorney fees.

The English Rule, you may have surmised, is that the loser pays the winners attorneys' fees. I believe that there are multiple progressive and conservative reasons that the Illinois Legislature should pass a comprehensive fee-shifting law that essentially adopts the English Rule for all tort and contract civil cases.

A Reduction in Government Costs

Fee shifting would increase the risks to both sides in going to trial, thereby making it more desirable to settle before going to trial. If litigants know that if they go to trial and lose they will have the additional salt in the wound of having to pay the other side's attorney fees, they will be more likely to settle, reducing the number of jury trials and thereby reducing the cost to the judicial branch to operate.

A Stop To Tort Reform

If Plaintiffs know that if they lose they would have to pay the attorney fees of the defendants, they will not bring frivolous lawsuits (frankly, I do not believe that there are very many frivolous lawsuits brought, but many people do believe that).

Evening the Playing Field

Many Plaintiffs attorneys will automatically recoil at the thought of universal fee shifting on state tort claims. But, when fully analyzed, this would actually even the playing field. Currently, all of the risk of litigation is on Plaintiffs counsel as they generally take on Tort cases on a contingency basis, and fund their side while Defense attorneys are generally paid every step of the way. A universal fee shifting statue would equalize the up-front risks of litigation.  Another consequence of fee shifting is that it would encourage Plaintiffs counsel to file small damages cases where liability was a slam dunk. Currently, because of the upfront risk, Plaintiffs' attorneys are more likely to file a big damage case where there is doubt about liability, and less likely to file small damages cases where there is little doubt about liability. The result is some frivolous cases are filed, and many meritorious cases are not filed.


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