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March|April 2005
An Academic Auction By David Bitkower
Job Fair By Dana Mulhauser
The Mobile Law Office By Margot Sanger-Katz
Self-Adhesive Salvation By Nicholas Hengen
Domesticated Disputes By Dashka Slater
Cases & Controversies
The Prudent Jurist By William H. Simon

The Prudent Jurist

In November, Florida voters approved a ballot initiative limiting attorney fees in civil lawsuits, and Nevada voters rejected another that would have meant penalties for lawyers who bring lawsuits lacking merit. Do such measures reduce "frivolous litigation"?

By William H. Simon

THE MEASURES PROPOSED AND ADOPTED IN THE ELECTION are perverse and ineffective. Fee limits reduce lawyers' incentives to bring strong cases at least as much as weak ones. Penalties for frivolous suits are rarely applied because the frivolousness standard is so low that it can be met by many claims that have quite small probabilities of success.

These remedies misjudge the problem. If by "frivolous" we mean claims that have virtually no prospect of succeeding, then there is no general problem of "frivolous litigation." Lawyers rarely bring such claims because they have little or no settlement value. The notion that defendants will settle meritless claims just to avoid the nuisance of litigation is exaggerated. Most defendants are repeat players who know that buying off weak claims would just inspire lawyers to bring more.

If there is a problem with low-quality claims, it resides more with judges and juries than with plaintiffs' lawyers. Our tort system is dominated by vague standards and enforced by dispersed tribunals of inexpert jurors. Decision-making is not as consistent or predictable as it would be in a more unified, professional system. It's no surprise that a significant number of decisions made by our system seem mistaken and even bizarre. When the stakes are high, lawyers and clients have incentives to bring claims even if their chances of success are small.

There is a highly effective and easily implemented solution for the problem of low-probability suits. The remedy is general fee-shifting of the sort found in the United Kingdom. Under this system, if the plaintiff wins, she recovers litigation expenses as well as damages. If the defendant prevails, she gets reimbursed for her litigation expenses by the plaintiff. If the case settles, the parties can agree on how to allocate costs, but the agreement will tend to anticipate that the one with the weaker claim is likely to pay more if the case goes to trial.

The "loser pays" rule would accomplish what current reforms are striving for: It would encourage plaintiffs' lawyers to bring fewer claims that have low probabilities of success. Unlike some current reforms, however, fee-shifting would work without inhibiting claims that have a high likelihood of winning.

Unfortunately, "loser pays" does not appeal to any of the groups most active in the tort reform debate. Plaintiffs' lawyers dislike it because it would force them to bear defense costs they can now impose on their opponents when they lose. Industry groups dislike it because, while it reduces "frivolous" claims, it invites a new category of lawsuit—small claims with a high probability of success that are discouraged under the current system because of the expense of bringing them. If losing defendants had to reimburse successful plaintiffs for litigation expenses, these claims would become viable. From the point of view of fairness, this seems a gain, but its prospective cost dampens business enthusiasm for the measure.

After the Department of Justice conceded last fall that the conviction of four Middle Eastern immigrants on terrorism charges was erroneous, the press reported that DOJ prosecutors had expressed doubts about the case at the time of indictment. One internal memo called the case "somewhat weak." Should prosecutors indict when they are not convinced of the guilt of the accused?

PROSECUTORS DISAGREE ABOUT THE DEGREE OF CERTAINTY they should have before they can ethically file charges. One view is that prosecutors should be held to a standard no higher than "probable cause," which is all that disciplinary rules require and no more than prosecutors need to avoid dismissal of the case. Advocates of this minimal standard say that it appropriately leaves decisions of guilt or innocence to the jury. They also argue that certain kinds of serious cases, like date rape cases, where the only witnesses are the victim and the defendant, might become unprosecutable under a higher standard.

But as the case in question demonstrates, a low threshold for prosecution can lead to miscarriages of justice. Prosecutors should be required to have the same degree of certainty to indict that they demand of jurors to convict—certainty beyond a reasonable doubt. "Beyond a reasonable doubt" is not just part of the jury's job description, it is the standard of confidence that the whole justice system strives for. When only jurors are bound by it, the public cannot assume that convictions have the reliability that the standard implies. In almost all cases, prosecutors know more about the case than jurors do. They know the inadmissible as well as the admissible evidence. They have more time to absorb and study the case. And their biases all favor conviction. If, despite these biases, a prosecutor has a reasonable doubt, so should the rest of us.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

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