One of the current suggestions to fix our healthcare system is to enact a system known as “loser pays,” in which the loser of a lawsuit is forced to pay the legal costs of the winner. Tort reform advocates suggest that this change would fix many problems with our civil justice system. To them I ask why not apply loser pays to criminal cases as well?
If you’re sued in a civil lawsuit, say for a car accident, your insurance company will cover your legal costs. They will hire a lawyer known to be good, pay the lawyer well enough that he or she will have enough time to dedicate to your case, and will cover all or some of any judgment against you. That’s why we pay insurance premiums. Under “loser pays,” if you’re sued and the plaintiff loses, the money will reimburse the insurance company.
Compare that to a criminal case. If you’re prosecuted for a crime you didn’t commit, you’re going to have to hire an attorney out of your own pocket. A decent attorney will likely charge $5,000 or more for a jury trial in a run-of-the-mill criminal case. If it’s a serious felony, especially a murder case, you can probably count on $25,000 or more in attorney fees. And if you’re charged in a big financial fraud case, you might have to shell out six figures in attorney fees. It’s not uncommon for people to have to get a second mortgage to hire an attorney, or to even have to sell their house and car.
Now, if that person is found "not guilty” then why shouldn’t the government have to reimburse those attorney fees?
Three words answer that question: Orenthal James Simpson.
I don’t think it’s any secret that many (perhaps even most) Americans think the criminal jury in his murder case got it wrong. Now, we all know that O.J. spent millions of dollars hiring the best lawyers money could buy. How do you think taxpayers would have reacted if they had to reimburse The Juice for all his legal fees?
It’s easy to imagine the effect on criminal prosecutions that “loser pays” would have: District Attorneys would bring fewer cases in total, especially against wealthy defendants that can mount a seven figure defense. District Attorneys would also be more likely to plea bargain serious cases on the theory that it’s better to take a light sentence than risk losing and have to pay the defendant’s attorney fees.
Do you want to live in a world in which the wealth of a defendant dictates the likelihood of that person being criminally prosecuted?
That’s the exact same thing that would happen if we enact “loser pays” in the civil justice system. Wealthy defendants (or those with large insurance policies) would rarely be sued. When they are, plaintiffs would likely accept small settlements in order to avoid the risk of having to pay the defendant's attorney fees. If you thought you deserved $100,000 from a pharmaceutical company, would you sue them if you knew that if you lost you might owe them $2 million dollars in legal fees?
Loser pays isn’t about being fair to winners or losers in a civil lawsuit. It’s about rigging the system so individual plaintiffs are afraid to sue corporate defendants.
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