1,277 words
America is notorious for litigation. Much of this is cultural, but it is also driven by the general, default rule that parties pay for their own attorney’s fees. The general rule in Europe and most countries is that the losing party pays the prevailing party’s attorney’s fees, or at least reasonable attorney’s fees.
There are exceptions, such as for civil rights claims or sanctions for improper conduct, but the bar is incredibly high for obtaining attorney’s fees as a sanction. A lot of behavior that is less than honorable and economically inefficient is routinely tolerated. Changing to the European system would be beneficial for both economic and political reasons.
It’s commonly said that a trial is a failure. The truth is that a lawsuit is also a failure, even if it doesn’t go to trial. One or both sides failed to understand their position. Or they sued or failed to settle in good faith. The less money that goes into attorney pockets means more money for citizens and their businesses.
A common counter-argument against using the European rule to reduce frivolous claims is that it would discourage claims that are meritorious but uncertain, but the truth is that it would also discourage frivolous and stubborn defenses if defendants knew they would be automatically on the hook for attorney’s fees in addition to damages. Automatic attorney’s fees are a double-edged sword. Thus, plaintiffs with truly meritorious claims would rarely be denied justice. As things stand, civil defendants know that the plaintiff, no matter how much in the right they are, still must calculate the cost of litigation and subtract it from any judgment they win. Collecting judgments is easier said than done, and are thus often discharged through private contract for less than the awarded amount, must also be calculated for. Thus, the American system sometimes encourages plaintiffs with strong claims to settle for less than the actual damages they suffered, or sometimes to not even sue at all.
For too long, settlements have been more determined by the war of attrition in attorney’s fees than on the merit of claims and defenses. Until “we’ll bury them in discovery” becomes a strategically unsound decision, it will not matter how much the rules of professional responsibility censor it.
Another good reason to encourage parties to settle out of court, with or without the aid of an attorney, is that courts frequently get things wrong. The usual standard of evidence in most civil cases is “a preponderance of the evidence” which means 50% plus one. It is like the scales of justice weighing two 100-ton weights against each other as a butterfly gently alights on one. It’s an incredibly low bar to meet for determining claims that can sometimes be so enormous, the fines and imprisonment of criminal law seem preferable, and which must be proven beyond a reasonable doubt. The preponderance of the evidence standard naturally means that even the best judges and juries will quite often make the wrong decision. This encourages parties with weak claims and defenses to make the old college try. Automatic attorney fees if they lose would deter them from rolling the dice and seeing if whoever decides the facts gets it wrong.
While switching to the European system would be great for the national economy, it would not be great for the lawyer economy. They would still frequently help clients navigate demand letters, and Europe is not without litigation, but the number of lawsuits and their components, such as various types of motions, would drastically drop. And that’s a good thing.
Despite being a single industry, the legal profession accounts for 2.07% of all electoral contributions, almost 80% of which go to Democrats per the FEC. And one can assume that their charitable donations also skew heavily leftward towards things like open borders NGOs, gossip rags like Pro Publica, the ADL and SPLC, and Antifa bail funds. Gutting the legal profession would be similar to cutting USAID.
I’m not under any delusions that Congress and the state legislatures would go along with this. Many of them are former lawyers, and most of them are slaves to the anti-white establishment. But that’s not necessarily a bad thing.
The legal system has earned itself a bad reputation, even among many independents and Democrats. Populist candidates could campaign on switching to the European system against establishment incumbents who would be forced to defend parasitic attorney fees, and when there are multiple countries proving that the European system works just fine. Attorney’s fees are almost as unpopular as taxes among those who pay them.
The European system increasing the risks of litigation while gutting the need for lawyers would also naturally make people want to select the best lawyers possible. This just so happens to be white men, unlike the current cast of diverse theater kids you see being admitted to law school. White male lawyers managed to be admitted to law school and get hired with affirmative action working against them while everyone else had it working for them. And even GPA no longer counts for much when so many law schools are generously giving extra time for exams, usually under the pretext of normal human emotions like anxiety masquerading as clinical disorders. A judge in a contract case isn’t going to give a party leniency because they’re represented by an emotionally fragile two-spirit BIPOC.
Whether in construction or law, if you want it done right, hire white.
The legal profession has systematically chosen not to regulate itself for decades because it faced no real pressure to do so. Like the Left in general, they only respect force. The threat of switching to the European system might encourage them to finally discipline their more extreme behavior. Or it may cause them to chimp out and double down, thereby making propaganda for us. Shifting attorney’s fees wouldn’t magically reform all of the legal system, as seen by how Europe still has its lawfare. But the way most people are oppressed by the legal system isn’t anti-white lawfare, its onerous attorney’s fees in apolitical cases—which are then used to fund liberal mischief.
The legal profession can also be pressured to adopt the European system to counter the fact that AI is driving a rise in the amount and sloppiness of pro se litigation. Being exasperated with pro se litigants is extremely bipartisan. The number of “frequent flyers” who go to court more because they seem to find it fun than proper will naturally rise with AI. But declaring pro se parties to be “vexatious litigants” and thereby forbidding them from representing themselves is extremely hard to do because choosing one’s representation, including representing oneself, has historically been an important right. Adding in the threat of paying if they lose (and pro se litigants frequently lose) will take the fun out of litigation for the frequent flyers.
AI will naturally encourage a litigious society to be even more litigious. Thus, people will need to be encouraged to handle their legal issues outside of court. If AI gives people the confidence to file and defend against a lawsuit every time a pit bull mauls a petunia garden, the court calendars will be clogged even more than they already are. This will naturally delay the hearing of claims that do have merit, and justice delayed is justice denied. The loser having to pay the winner attorney’s fees will make potential pro se litigants more likely to use AI to come to a fair and objective resolution rather than to declare total lawfare.
There is no reason not to switch to the European system of attorney’s fees except to defend a rent-seeking, anti-white system.
8 comments
Suing under common law theories (e.g. breach of contract, negligence, etc.) in the United States does not typically allow for fee shifting, though that can happen if the claims are deemed frivolous or a party engages in abusive and prejudicial conduct during discovery. In some states, if you lose a discovery motion, you have to pay the other party’s fees associated with that discovery motion. Obviously not all litigation involves common law claims. There are many statutory claims that allow for fee shifting similar to the European model.
Fully adopting the European model for all claims, including common law claims, will only empower and embolden corporations and high net worth individuals to take advantage of “the little guy.” Here’s one simple example: Small Company X enters into an exclusive contract with Big Company Y. Big Company Y makes a calculated decision to breach the contract, which nearly puts Small Company X out of business. X sues Y, which — for strategic advantage — counterclaims against X for a relatively minor invoicing issue. X’s attorney charges $350 per hour. Y’s attorney charges $1250 per hour.
Even though Y made the calculated decision to breach and X was financially devastated, Y now has greater leverage solely because of the adoption of the European fee-shifting model.
The legal system certainly needs reform. But this isn’t the way. Adopting the European model would, on balance, benefit the party with more money/resources and make the judicial system even less just.
So why is Lady Justice wearing pasties? I guess she’s off work because her blindfold is gone, but still… 😛
While we’re making wishes, it might also be wise to cap the amount of money the plaintiff can spend on a case (especially a case that fits criteria of lawfare or abuse which we could define), and to otherwise reduce the disparity in lawyer power between individuals and corporations and government. Perhaps a bigger fish suing a smaller fish must be limited to some multiple of what the smaller fish could afford, or to a fraction of the damages or fine that would be paid if successful. As you know, to a large degree money buys justice, and slapping the loser with bankrupting fees simply because he couldn’t afford a good lawyer is not good either. If “pay your own fees” encourages pro se litigants, then “loser pays” may encourage well-funded parties to pursue some small damages plus massive fees (“you forgot to dot the ‘i’ so give me $5 plus $10,000 in attorney’s fees”).
Of course, those are often double-edged swords, as you said.
“While we’re making wishes, it might also be wise to cap the amount of money the plaintiff can spend on a case…”
You want the state legislature coming up with an arbitrary cap on the amount you can spend to vindicate your rights? If the government tells you that in a private contract dispute you can only spend X, you then have to set up a triage budget and figure out which legitimate and effective litigation strategies must necessarily be abandoned. For instance, if you need to test a product, depose 5 people, review 1GB of data, and then make three necessary motions before trial, you will have to forego some of these essential litigation tasks if the other side makes unanticipated motions or something unexpected happens (which is inevitable) that drives the budget over X.
I don’t mean to just critique the ideas of others without putting forth a few of my own. Here’s a few of my own reform ideas:
Require trial courts to issue written opinions for all substantive decisions;
Allow simple and streamlined processes for lawyers to complain about judicial misconduct and lack of fitness;
Heighten the standards at the motion to dismiss phase to weed out frivolous complaints. (In other words, all states should be moving toward the federal requirement that complaints be plausible and factually supported).
There is no reason not to switch to the European system of attorney’s fees except to defend a rent-seeking, anti-white system.
On the surface, the switch would remove a major source of income from our traditional enemies—the forces of “universal progress.” Great article! 🙃
To get rid of a logjam in my aunts estate I agreed to be the administrator/executor. It was the worst mistake I ever made. One of the heirs sued me and the estate lawyer on a number of issues, all of which were eventually shown to be without merit after years of legal maneuvering. As your article made clear they had little to lose by doing this. We wound up with over 30k in legal fees but the years of having my name dragged thru the mud, plus the uncertainty of the outcome was much worse. You can’t really describe it — you have to live it to know what we went through.
Many thanks Mr. Zsutty for bringing this issue into the open —although the chances for reform are slim. Our legal system is quite comfortable with the status quo.
And that’s why Shakespeare was correct. One of the heirs sued me and the estate lawyer on a number of issues, all of which were eventually shown to be without merit after years of legal maneuvering. What a sack of shit this person was.
The American justice system is so corrupted and anti-White at this point that no return to a European system or reforming of lawyers’ fees, or other reforms, will resolve anything. Only revolutionary-minded, eligible Whites separating racially and withdrawing their consent to have disputes and other matters adjudicated and judged by the existing system, and creating one that suits us, will do.
William Pierce, who had considerable experience observing and being involved with American courts as a leader of Whites, gave us historical background 26 years ago that is worth reading and considering on this subject today, “Lawyers” at nationalvanguard.org:
I SHOULD BEGIN today by telling you that I know from personal experience that there are some decent men who are lawyers. In fact, some of my best friends are lawyers. I also know that the legal profession as a whole has become so corrupt that it is a threat to our race and our civilization. The judicial system in America has become one of the most destructive weapons in the hands of our enemies. And it didn’t begin with the O.J. Simpson trial. Two hundred seventy-three years ago the English writer Jonathan Swift described lawyers as:
…men bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black and black is white, according as they are paid.
And it was not for nothing that 400 years ago William Shakespeare had one of his characters — Dick the butcher in King Henry VI — say: “The first thing we do, let’s kill all the lawyers.” Dick was expressing a very popular sentiment in those days.
In fact, that has been a popular sentiment as long as there have been lawyers. Some 2,200 years ago serious and tradition-minded Romans were sufficiently troubled by the behavior of lawyers and by their negative effect on public morale that they made a serious effort to rein them in. In 204 BC the Roman Senate passed a law prohibiting lawyers from plying their trade for money. A man skilled in the law might volunteer to defend a friend or a cause in the law courts, but he was forbidden to accept a fee for his services. That would have been one of the best ideas the Romans ever had, if there had been some way to enforce that law effectively. Of course, as the Roman Republic declined and became more and more democratic, it became increasingly difficult to keep lawyers in check and prevent them from accepting fees under the table, and young men with more ambition than scruples flocked to the practice of law.
For a successful Roman lawyer the essential skill was rhetoric. The Greeks had reduced rhetoric to a science — the science of persuasion — and a number of Greek rhetoricians set up schools of rhetoric in Rome. Tradition-minded Romans saw these rhetoric schools as a subversive influence: as an assault on Roman morals and customs. Cato the Censor commented early in the 2nd century BC that after listening to some of these clever Greeks it was impossible to know what was true and what was not. Some Greeks themselves shared Cato’s view of the rhetoricians, and already two centuries before Cato, Plato had referred to them as notorious for “making the worse appear the better cause.” In 161 BC the Roman Senate ordered all of these Greek schools of rhetoric closed and their teachers expelled from Rome.
Alas, that provided only a momentary halt to the problem, and the rhetoricians and the lawyers were soon back in greater force than ever. The rhetoric schools were shut down again in 92 BC by the censors, who were Rome’s official guardians of public morality, but again the cure was insufficient for the sickness. Trying to keep lawyers out of the Republic in its last days was like trying to keep maggots away from a dead horse.
And of course, the fact that there always has been an overabundance of men with more ambition than scruples wasn’t the only reason for this; there also was the fact that there was a real need for lawyers. As long as we live in a society based on law, we need men to formulate laws, to administer laws, to interpret laws, and to help ordinary citizens cope with the laws. We also need safeguards to prevent laws and lawyers from swamping our society. We need safeguards to keep laws as simple as they can be while still serving their purpose, and to keep them from proliferating unnecessarily. We need safeguards to prevent lawyers from abusing the system. And unfortunately, these safeguards do not exist in our society. Lawyers are out of control. The legal system is out of control. The Romans at least tried to provide safeguards against the lawyers. We haven’t even tried.
The reason we haven’t tried is that we have in effect put the foxes in charge of the henhouse. The people we have put in charge of our legislative system and our judicial system are all lawyers themselves, and they are as a class not inclined to do anything to curtail their bread and butter or to limit their power and influence. The result is the sorry spectacle we witnessed in the U.S. Senate last week, when a bunch of crooked lawyers was called on to deal with another crooked lawyer who had been caught in flagrante delicto. The senators didn’t really care that Clinton had broken the law. What they cared about was his popularity polls. They weren’t concerned about having a felon and a reprobate in the White House; they were concerned about votes, about their own popularity polls. That’s why we saw the Republican lawyers dancing all around the real issues and failing to come to grips with them. That’s why we saw Charles Schumer and other Democrat lawyers dancing the hora in the halls outside the Senate chamber after the head lawyer of their party was acquitted. What a disgusting scene!…
[deleted for brevity]
Morris Dees [of the misnamed Southern Poverty Law Center], more than any other lawyer, epitomizes what is wrong with our legal system in America today. He helps us to understand why there has been a general feeling among our people, from the time of Plato to the present — a feeling expressed over and over by our writers down through the millennia — that there is something fundamentally unclean about men whose profession it is to make the worse cause seem the better, to use Plato’s words, or to prove that white is black and black is white, according as they are paid, to use Swift’s words. The noble Romans considered such a profession to be un-Roman, and today we consider it to be un-Aryan.
Our legal system has become a system of lawyers, run entirely by lawyers, solely for the enrichment of lawyers. It is a malignant system which threatens the freedom of us all and which does not have the will to cure itself. It is because of this that the cure will have to come from outside the legal system and will have to be a very painful cure indeed. Someday, in a new society, we will have to build a new legal system. Let us not make the same mistakes we made — and that the Romans made before us. Let us build a system with adequate safeguards: a system to serve the race, not the lawyers.
Read more from Pierce at the link above that is not taught to idealistic students in their Schools of Law.
Comments are closed.
If you have a Subscriber access,
simply login first to see your comment auto-approved.
Note on comments privacy & moderation
Your email is never published nor shared.
Comments are moderated. If you don't see your comment, please be patient. If approved, it will appear here soon. Do not post your comment a second time.