Let’s suppose a company with massive legal resources steals $50,000 from me in a way that can only be proved through a tedious, laborious lawsuit, but that I have absolutely no money. The general “American Rule” on legal fees is that the other party is NOT responsible for YOUR legal fees, even if you win the lawsuit. (The “English Rule” is the opposite: that the losing party pays all the legal fees of the winning party.)
I live in the U.S., and and this American Rule doesn’t make much sense to me. By this rule, anybody “big” can step on anybody “small” because the big guy has more legal power, and the little guy can’t do anything about it. I’ve read that lawyers generally don’t take on cases purely on contingency (promise of money from the results of the lawsuit without anything paid up front) unless there has been a serious physical injury.
What…the…hell? By this system, you might as well just declare it legal for any major entity to steal from a small entity, because they can. What is the point in even having laws if you can’t enforce them? You might as well have no police and let anyone on the street rape and murder anyone they want, without any consequences.
Does this make sense to you guys? Am I missing something? Are there courses of action I’m not considering?
How about suing for emotional damages, because that’s a form of injury? If (in my simplified example) that $50,000 is the only income I have for a year or two, that makes it extremely emotionally and physically damaging because I can’t put food on the table, etcetc? Remember that if I wanted to sue, it would cost way way way more than the $50,000. It cost half a million dollars for all I know to go up against that company, so I’d have to sue for much more than they even owe me. That would put me in debt forever. Also, the very process of proving emotional damages is extremely tedious, lengthy, etc.
Thanks for any help/info!!! You guys are great as always
And what about criminal charges (as opposed to civil law, which most of the above usually falls under)? If my feelings are such that the situation/company is harassing me in a similar manner to physical assault/abuse, can I press charges for intellectual assault in a similar manner to physical assault? Again thanks!!!
Let’s suppose a company with massive legal resources steals $50,000 from you in a way that can only be proved through a tedious, laborious lawsuit, and furthermore that you are not rich but not completely destitute. You might be able to afford your own lawyer for the lawsuit, but there is absolutely no way that you would be able to pay for the massive legal resources that the company will use to defend itself. Under the English Rule, you might be dissuaded from bringing your case to court because losing would mean bankrupting you. But under the American rule, the most you would lose would be your own legal fees.
Seems that the problem you describe (big companies treading upon the less wealthy) is just as much a problem with the English Rule as with the American Rule.
Companies, or indeed individuals, with ‘massive resources’ that can pay for the best legal help, will always mean that the ‘big’ can walk on the ‘small’.
In the UK, and, I believe in the USA, lawyers will take cases on a no-win-no-fee basis. Of course, they normally restrict this to cases with a good prospect of success, but this does mean that even the little guy can take on a big corporation. In this country at least, most of these cases never reach a court but are settled before that to minimise the legal costs, and yes, the loser has to pay the costs of the winner.
Unfortunately, this has led to the situation where lawyers tout for business, especially in personal injury cases which has bumped up everyone’s insurance premiums. People get unsolicited speculative phone calls asking them about ‘their recent injury’ even they have not had any injury. The government seems to be putting a stop to it at long last.
What I mean by “intellectual assault” (not an official legal term) is actions that result in emotional distress, and that you can sue for. It’s rare not because it doesn’t frequently happen, but that it’s difficult to prove, but there are ways. For instance, if a doctor officially diagnoses you with PTSD (Post Traumatic Stress Disorder), then you have something quantifiable, and can attempt a personal injury lawsuit. Or let’s say you have definitive testimony from 5 family members that you can’t sleep and have panic attacks and mental trauma resulting from the actions of someone else, that’s also evidence you can bring into court. Now maybe most of the time emotional distress/etc falls into civil court, but honestly, the core, heart, and spirit of the matter, is that if you’re consciously causing harm to another person, that shouldn’t be limited to civil court. The civil/criminal thing may be splitting hairs, but the point is you can bring emotional damages into court.
Are you just now figuring out that the system is slanted to the rich? It is, you know. All of it. The law is just one minor example. That’s because they have the power to influence how the system works, down to the base.
That’s the only factual answer to your question. If you have a real, specific, actual theft of money see a lawyer. You can get an initial consultation for a small fee.
It’s very trendy now to heap scorn on class action attorneys and regard them as some sort of leeches, but often times they are the only thing keeping the rich and the huge corporations in check.
Of course, as you point out, it’s often not economically feasible for an individual to seek justice. But if a class of people who have been similarly injured can be identified, it can become worthwhile for an attorney to take on the risk of running with the case. And the large corporations do fear this.
Yes, you can grouse about how all you got from a class action was $50 and a coupon for a free ice cream cone while the lawyers got millions. But you wouldn’t have even gotten that if they hadn’t taken the risk and maybe the corporation will have to think twice about ripping other people off in the same way.
In a contest between two people, the one with more available resources is going to win. Where you rein in powerful corporations is with class action lawsuits (because their misbehavior is almost always impacts lots of people), and federal agencies like the Department of Justice and the Fair Trade Commission. THey have the resources to uncover systemic misbehavior and connect it to the people who ordered it.
Even in cases where a single individual has suffered because of a powerful organization, their are private organizations like the ACLU, and EFF that often support individuals facing a significant disadvantage, provided it’s within their area of expertise.
Also, the damage award in a civil lawsuit can (and often does) include legal fees, at the judges discretion.
Coincidentally, I was just thinking about class actions. I practice in a jurisdiction without class actions, and I kind of wonder if class action suits would make a difference here. It seems to me that class action suits serve a private regulatory role, that is, a way to “hold to account” corporations who by the nature of their business could cause many small injuries to a multitude of consumers.
As a trade off, it greatly increases the legal overhead - more business for lawyers, and a “privatised” regulatory function. This probably makes sense for USA, since everyone seems to like private business and I doubt any regulatory function would work right anyway.
It’s more surprising to me that the EU has adopted class actions, with their strong regulatory environment.
I mean, it’s not always so clear. Legal fees are much higher in the US - discovery is much more limited elsewhere in the world. Fees are also “taxed” - the court goes through the legal fees and determines what costs should be allowed and what should not. Many times, for interlocutory applications, costs are fixed - e.g. if I were to appear before the registrar to argue that I should not be required to answer an interrogatory, and lose, the registrar might fix costs at $2000 inclusive of disbursements, regardless of what the other guy actually paid their lawyer to attend at the hearing.
My usual advice is that you’ll be lucky to get 2/3 of your costs paid by the other side, and that’s in a normal setting. If one side ran a US-style panel of lawyers I wouldn’t be surprised if costs got knocked down quite a bit.
In Singapore, no win no fee (contingency fees) is not allowed, I assume specifically to avoid litigation seeking behaviour. I don’t know if it would work in a different society, but people seem to be less litigious here…
If a judge or jury feels that the conduct is egregious they can award punitive damages in excess of actual damages. Judges can also award attorney’s fees to the winning party if they believe it would be unfair not to.
The award of punitive damages is not as straightforward as you imply. They are available in only certain circumstances, and are closely scrutinized. It’s not just something a jury can decide to do.
No, that’s not true at all. In some cases attorney fees can be awarded (civil rights litigation, for example) but, again, it’s not something a jury can just decide to do because it’s “fair.”
Sometimes yes, sometimes no. Regular people win cases against large corporations (and even the US Government) all the time. It’s not easy, but it happens. I have had many clients recover damages for their losses in cases against 1) the US Government, 2) state and local governments, and 3) large corporations.
This is nonsense. Judges can award attorney’s fees to the prevailing party only where (1) a specific statute authorizes it, such as in civil rights cases, (2) the losing party’s conduct was frivolous, or (3) the parties contracted for them.
Good lawyers typically won’t take personal injury cases unless there has been a substantial personal injury. I don’t think you’d have much trouble finding a lawyer to take a case on contingency based on $50,000.00 in damages.
I expect that you will find that although contingency fees are not allowed, “no win no fee” is not what that means.
The more common restriction in Englsh-derived systems is that the amount of the fee has to be “fixed”. Not contingent on the settlement. *But the lawyer doesn’t have to charge in advance, or persue payment *
“Fixed” as in a fixed hourly rate, or fixed some other way. “Fixed” as in not contingent on the settlement.
It turns out that “double or nothing” is not as attractive to lawyers at “30% of the payout”, but it doesn’t completly prevent “no win, no fee”
Particularly in the USA, where government intervention to keep the huge corporations in check is frowned on.
I have to explain this from time to time to Australians: that the huge payouts they see reported in the American press aren’t as crazy as they seem: they are in lieu of an Australian system of regulation and an Australian system of social security.
But that doesn’t mean the system isn’t broken: you will be familiar with the analysis of tort reform demonstrating the result of tort reform is not to save money, but that more money goes to the right people, more of the right people are compensated, and less money goes to the lawyers.
