[thegasman]

>We do not have equal access to our judicial system in the United States.

I agree, but I think we can be more specific.

Criminals (or those accused of a crime) are constitutionally guaranteed an attorney. Civil plaintiffs/defendants, by contrast, have no such right. The anecdotes and experiences of HN users overwhelmingly describe the civil side of things.

Civil lawsuits, IMO, should carry no guarantee of counsel at the constitutional level. Imagine if they did: free lawyers mean frivolous lawsuits and over-burdened courts. But, I don't think anyone is actually clamoring for such an arrangement.

So, specifically, how can we more efficiently allocate limited legal resources to ensure that the average civil litigant is not disadvantaged by a wealth disparity with his opponent?

Well, what's the perceived disadvantage to a resource-poor litigant? What's the perceived advantage to a resource-rich litigant? Good facts make good cases much more frequently than good lawyers make good cases.

[stormbrew]

An interesting thought experiment along the lines of resolving this inequality is making it so that sides can only fund their civil case through a fund that both sides contribute to but both sides get an equal share. This means in order to frivolously sue someone, you have to be willing to fund their effort to defend against you.

It probably breaks down a lot in cases involving multiple litigants (let alone class actions), but it is an interesting idea.

[knodi123]

"Hi, yes, I'd like to sue Apple for millions, and since I'm an unemployed armchair lawyer, I can make sure it takes a long while and a lot of tedious aggravation to beat me. Also, since I'm suing pro se, Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial. Or, you know, I'd be happy for Apple to just give me $100,000 to settle."

Then repeat for every wealthy corp you can think of. A loss doesn't hurt you, because you're still getting paid from the joint legal fund.

Alternatively, Apple could give a lawyer a million dollar gift, with the understanding that he'll defend them in any lawsuits for the next year while charging minimum wage. Then, Apple would be happy to pay an equal amount of minimum wage dollars toward the other side's legal expenses.

[stormbrew]

The former issue is a valid concern, but I actually think combined these almost form a resolution to the issue.

I don't think BigCorpA could get away with simply gifting a lawyer a large sum of money to work on cases with arbitrarily low costs, but I do think they could have contract lawyers who work for the fee their opposition works. These small frivolous cases run by a person representing themself should not require millions to get shut down as being such (and if they are that's a different legal system dysfunction), but there'd be more than enough cases where the amount spent is large and being on deck for those would be worth it to a good lawyer. Not to mention cases where the company thinks upping the spend is worth it to defend on something real and important.

Note that I don't think your scenario is actually all that different from the current reality, other than the idea that your opposition is funding you, but there are almost certainly arrangements where this would not be the case.

Also, if your case is dismissed as frivolous I think you would not get any of the fund regardless.

Good points :)

[gph]

If Apple knew it was a frivolous lawsuit that it barely needs to defend itself against, then it probably wouldn't put any money into the fund and just defend itself with half of whatever you put into the fund.

Maybe I'm reading the parent comment wrong, but I assumed this system would allow for unequal funding between the two sides. So if you think it's a frivolous lawsuit that you can easily win you would just let the other side fund the entire endeavour.

[gpm]

The problem knodi is raising is that pro se litigants don't have the same cause as normal ones, because they aren't paying for lawyers.

A solution to this might be to say that any money not sent on the case is given back to the person who payed more, so it's not an avenue for making money.

[knodi123]

You'd need to also disallow pro-se litigants paying themselves a fair wage out of legal costs, in order to defeat this clause of my evil scheme: "Apple would be paying me a salary equal to whatever their legal team makes for the duration of the trial".

Which is maybe not an unreasonable solution, but it strikes me as fraught with unintended consequences.

[stormbrew]

Yep, that is what I meant.

[noir_lord]

That's a genuinely brilliant idea!

The ramifications on corp to corp lawsuits would be amazing.

[marme]

it makes frivolous lawsuits even worse. It means if i bring a lawsuit against a major corporation the either have to put up a very cheap defense so that i dont get much money for my lawyer or if they go all out then i have the money to hire top lawyers and drag the frivolous case out. It would make patent trolling even worse because lawyers would just sue big companies so they have work for a few months that is guaranteed to be paid by the corporation

[thegasman]

This is clever!

I see at least one flaw, though: what if the two sides disagree about the amount of money that should be contributed to the fund?

[stormbrew]

Well, in my premise there is no need for agreement. If side A thinks it's worth $N and side B thinks it's worth $M, they each get ($N-$M)/2 to work with. This asymmetry is what makes it a bad choice to try to overpower a less wealthy opponent by simply outspending them.

I haven't really thought through the consequences of requiring some kind of agreement in advance, but my instinct is it couldn't really work just because being obstinate would be heavily rewarded.

[rms_returns]

A brilliant idea! I hope this actually gets implemented some day in a legal system of any country.

[bcruddy]

What about a right to a defense attorney in a civil case? That way you can't bring frivolous suits. That's actually exactly how the criminal courts work too. This seems too simple of a solution though, are there good reasons not to do this?

[mundo]

Everyone has a right to a defense attorney, just not a free one. Are you suggesting that the government (which is to say, taxpayers) fund the legal defense of everyone who gets sued in America? Including, say, OJ Simpson's civil suit?

[Drakim]

To be fair, when somebody sues somebody else, it's not like it's a private affair, the suing party is actually asking the state to use it's power against the sued party.

It's not crazy to think that before the state should use it's power against you on behalf of another citizen, it's up to the state to ensure that this action is lawful and correct to do (which might require supplying you with an attorney).

[bcruddy]

I think so. I believe he should 1000% have been appointed one in the criminal case had he not been able to pay for one and he won the criminal case before he was sued.

[yrro]

The winning party should be able to apply to the court for a costs order once the case has been decided, and the court can decide whether their reasonable costs should be borne by the loser.

[thegasman]

^This happens routinely

[djrogers]

> Good facts make good cases much more frequently than good lawyers make good cases.

Demonstrably not in the case of patent lawsuits, especially in east texas.

[thegasman]

I don't fully understand what you're insinuating. Could you explain?

[bcruddy]

Basically, some rules were established that allowed patent cases to be heard lightning fast in Texas' Eastern District and generally in favor of the plaintiff because the patent trolls knew these different rules for presenting arguments better than defendants did and abused the system.

"Ward’s rules unleashed what became known as the 'rocket docket.' In his first year on the bench, Ward heard 5 patent cases. In 2006 his docket had 87. 'I did not anticipate that there would be an explosion of lawsuits,' says the now-retired judge."

"Yet Marshall soon gained a reputation the judges may not have welcomed: it became known as a plaintiff’s playground, a place that frequently handed out tens, or even hundreds, of millions of dollars in damage awards. In 2006 the New York Times reported that of the patent cases that went to trial in Marshall, jurors ruled for plaintiffs 78 percent of the time, far more than the national average of 59 percent. From 2001 to 2006, plaintiffs prevailed in eighteen straight verdicts in Marshall."

http://www.texasmonthly.com/politics/patently-unfair/

[CyberDildonics]

Maybe the cost a lawsuit should include a public defender style attorney for the defendant?