A new bill is being proposed in the Indiana State Senate called the “Loser Pays” bill, which would require the loser of any litigation to pay the winning side’s attorneys fees. Please read the following post from fellow Indiana attorney John Daly for more information on the ramifications this bill could have if it is passed.
I read with dismay the introduction of Senate Bill 88, the “Loser Pays” bill. This bill would make the loser in any litigation, from small claims to divorce cases, responsible for the other sides attorney fees and costs. This bill, if enacted into law, would close the courthouse to the people who need it most. In 25 years as an Indiana lawyer, I have never had an individual client who could afford to pay attorney fees if they were not on a contingency fee. Our clients are not people who are “sue crazy” they are people who are at the end of their rope who have lost their livelihood, and often their lives, through the negligence of someone else.
The prospect of having to pay hundreds of thousands of dollars if their suit is unsuccessful would end nearly all the the initial client interviews at that point. Medical malpractice cases, already facing daunting procedural and statutory constraints, would disappear. And for those of you who have been out of contact with modern medicine, the more the practice of medicine becomes a business and not a calling, the more malpractice occurs. The doctors already have a statutory fortress to protect them from “frivolous” litigation.
This bill would not only hurt plaintiffs. All of the defendants in clear liability traffic accidents, from a 16 year old to an 86 year old, would now be responsible for not only damages, but for attorney fees. Most insurance policies now exclude attorney fees from coverage, leaving the defendant driver faced with an uninsured exposure and putting the insurance defense lawyer, already serving two masters, in an even more untenable position.
Even corporations would be harmed by passage of this bill. Insurance companies would begin charging additional premiums to start covering attorney fees and the incentive to settle marginal cases would be increased because of the prospect of fees being awarded. This is currently the case in many civil rights suits, where a jury awarding even $1 can result in the defendant paying their plaintiff’s attorney fees.
Just as well intentioned but ill-informed doctors bled George Washington to his death, well intentioned but Ill-informed legislators are in danger of doing the same to the civil justice system in Indiana with SB 88. Please call your legislators and tell them this is a bad idea and that everyone loses with Loser Pays.
– John P. Daly, Jr, Attorney & Friend of Turner Valentine, LLP
