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Loser Pays Part 2

January 18, 2013


A bill has been introduced again this year in the N H Legislature with the concept of loser pays .This year it applies to Tort Actions , that would include motor vehicle accidents ,libel or slander ,professional malpractice ,business torts ,products liability wrong full death etc. This concept of loser pays is based on the mistaken notion that our courts are flooded with frivolous  lawsuits and would make the losing party pay legal fees and expenses for the prevailing party and is known as “The English Rule”.

AS I stated at the initial meeting of this year’s N H Bar Legislative Committee “WE are not England .WE separated ourselves from England  hundreds of years ago and we don’t  have a Queen.” Our system of Civil Justice attempts to give both rich and poor access to the Justice System . . The reality of imposing loser pays  is, that  it would put our legal system beyond the means of persons of modest means. The wealthy can afford legal representation and if they lose  ,so what. It’s only  money .  The threat of losing  would  have a chilling effect on the rest of us even with meritorious claims

The solution already available would be to petition the Court early in the process to dismiss the lawsuit and if in the Court’s judgment the lawsuit is utterly lacking in merit then to assess costs and fees. The assessment of fees should not be done automatically .Someone always wins and someone always loses a lawsuit. It doesn’t mean because someone loses a lawsuit it is without merit. Lawsuits have had a positive effects on  improving the delivery of professional services and the safety of the vehicles we drive . Do we really want to give that up for those individuals who think a lawsuit by its very nature is frivolous ?

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