Originally Posted by sjjohnston
There have been numerous discussion on topics like this. Often, a "man in the street" consensus emerges along the lines of, "absolutely, the ski area [or whatever business we're talking about] shouldn't be responsible for accidents ... unless, of course they were negligent." Which is, of course, what the law is (okay, yes, with some strict liability exceptions, which don't include ski areas). Indeed, with ski areas, as the poster above note, in most ski-country states, the ski areas are more protected than that.
There are kind of huge problems with "loser pays":
- Define "loser." If I sue you for a hundred million dollars and win a hundred, who won?
- It would bring many perfectly legitimate lawsuits by "little guys" to a screeching halt. Unless you believe you can perfectly predict how a judge (or, for God's sake, a jury) will rule, you're never really sure you're going to win. The downside of the plaintiff losing changes from a waste of lawyer's time and expenses (which a contingent-fee lawyer mostly eats himself) to the plaintiff being out perhaps hundreds of thousands of dollars. Most plaintiffs' lawyers couldn't bear that risk (so, what, contingent fees go up from 1/3 to 3/4?). It would spell certain bankruptcy to a great many plaintiffs. In your classic "big guy defendant" scenario, I guess it encourages settlement a little bit more (whoop-de-do), but also encourages really, really expensive litigation tactics.
- There are already lots and lots of one-sided "loser pays" statutes (employment claims, claims that have an aspect of "consumer protection," etc.). Do they help? Hmm. Some do. I don't know that they've revolutionized the world, other than to make it pretty easy to demand at least some settlement for any colorable employment claim.
- If you really want a "loser pays" rule in a situation in which there's any sort of opportunity for a contract ahead of time (basically, where it's not a tort between strangers), the parties can create one. What stops a ski area or a ski shop worried about liability from putting it into the terms of their ticket or transaction? Indeed, many of them do.
A better reform would be (i) eliminate civil juries (which, unfortunately, are in the Constitution) and (ii) pay judges as much as highly paid lawyers (which, unfortunately, would freak out the people who make a fraction of that).
I can't comment on suits against ski areas because I don't have specific knowledge. I do know that in the civil litigation with which I am familiar the costs of litigation are a significant operative component in the ultimate assessment of liability (e.g., in whether, when and for how much settlement occurs) and, in many cases, whether a suit is brought or not at all (even if meritorious). And it is my point that "what the law is" (as well as the facts, of course) is rendered unacceptably unimportant by our current system.
Re your comments on loser pays:
Your first point is valid, but I doubt it's something that couldn't be worked out. Admittedly, I haven't thought through the possibilities and possible solutions yet, which I guess makes my response a bit dismissive - sorry. (I do have an answer for your hypothetical, though: I won.)
Regarding inhibition of lawsuits by small guys, I disagree. First, the existing system significantly deters such lawsuits: an individual inventor, for example, is going to think long and hard about suing mega-corp infringer, which can bleed him dry long before reaching the real merits of the case. Contingent fee agreements are possible, but they are too with a loser pays system and the basic calculus for the attorney will be the same: what's the likelihood of winning, how much might be won (of course there can be a range of possible outcomes with different likelihoods of occurrence), and how much will the attorney have to put at risk (contingent fee cases under the current system are hardly a cost-free exercise on the part of the attorney). Sure, many plaintiffs lawyers couldn't bear the risk of losing hundreds of thousands of dollars ... but they can't with the existing system either, and in complex litigation that's what they already risk (we must assume that the attorney could otherwise get paid for that billable time).
As to encouraging really expensive litigation tactics, again, I disagree. That's exactly what the current system does: it is a common tactic to seek to bury the opposition with burdensome discovery requests. In fact, I think such tactics (which I'd say are more likely to be initiated by a party that's not so sure of the merits of their position) would be less common with a regime in which you've got to be concerned that you'll be paying the bill (and that's particularly so if I'm correct that such tactics are more commonly initiated by those having a dubious legal position).
"There are already
lots and lots of one-sided "loser pays" statutes." Lots and lots? I don't believe that. Moreover, I don't understand how loser pays makes it easer to demand at least some settlement for dubious claims. I think it's pretty common knowledge that that is just what the current system does. Loser pays should do just the opposite: if I'm very confident that I'll win, why will I pay you off? Of course, whether I decide to pay you off, and in what amount, will also depend on the amount at stake and how sure I am of winning ... but I think a certain amount of risk assessment is an unavoidable part of any legal regime.
As to adding terms regarding "loser pays" to a lift ticket, I'll bet that's not enforceable. You can put anything you want in an "agreement" of that sort, but that doesn't mean you can necessarily enforce it. For example (and I don't know the latest on this, even though I know I read about it within the last six months or so - lawyer, shitty memory, go figure), the enforceability of shrinkwrap licenses has been an area of debate for a long time.
I agree with eliminating juries and having highly paid (and specialized) judges.