A recent proposal made by Arizona State Representative Ted Vogt, of Tucson, has several trial lawyers in the state very concerned. Representative Vogt has proposed a piece of state legislation that would allow trial judges to order someone who lost a lawsuit to pay all the costs and legal fees of the winner. These types of laws are typically referred to as loser pays laws. Most American courts follow what is known as the "American rule," where each party bears their own litigation expense. However, loser pay laws follow what is known as the "English Rule," which require the non-victorious party in a lawsuit to bear the burden of not only their legal expenses, but the expenses of opposing parties as well.
According to Representative Vogt, the implementation of a law like this "is only fair." Vogt believes that a measure such as this would decrease the number of frivolous lawsuits brought in the state. It not surprising that Rep. Vogt has this opinion, because it is not his first time championing such a piece of legislation. Just last year, Vogt proposed a stricter version of the law that he is currently championing. Vogt first proposed a laws that would automatically require the loser of a lawsuit to bear the burden of their opponents court costs. Fortunately, that proposition received enough opposition that it was unsuccessful. It was this opposition, according to Vogt, that caused him to fine tune his proposal. Although the detail of the new proposed law are not ironed out completely, this new version would leave the final decision on who should pay costs and legal fees to the judge who heard the case.
Despite Vogt's statement that "I absolutely don't want to do anything to affect anybody's ability to go into court," it is likely that a measure such as this, if successful, would do just that. As would be expected, members of Arizona's Trial Lawyers Association, who represent those who go to court with cases of personal injury, property damage, medical malpractice and wrongful death, are adamantly opposed to any measure such as this. According to the organization's president, Janice Goldstein, in response to the contention that this type of law would cut down on frivolous suits, "Just because you lose a lawsuit doesn't mean it was a frivolous case. Ms. Goldstein is correct, because of the several variables that go into presenting an issue at trial, the failure to receive a favorable jury verdict is not indicative of the merits of a particular case.
Ms. Goldstein was also very correct in her statement that: "You need to be careful you don't have a chilling impact on people who have been harmed feeling that they cannot bring a case against a large corporation. Because, if they lose and the jury decides against them, they would have to pay for all of those fees." It is true that if a measure like this were to be implemented, it would have a the effect of virtually robbing people of their ability to be heard in the judicial system. As a Mississippi trial attorney, attempts to implement measure such of this cause me great concern, because of large detriment they would have to those who have been the victim of another's negligence. If laws like this are passed, it would hamper deserving individual's ability to receive the compensation they deserve as a result of injuries they have sustained, and that is not right. So, it is my hope that the legislative body of Arizona once again rejects this legislation, and it is also my hope that no other states see consider such measures.