One of the most common "tort reform" (and "patent litigation reform" and "anti-SLAPP") ideas is to enact "loser pays," in which the side that lost has to pay the attorney’s fees or costs to the side that won.
In theory, "loser pays" (more officially known as "fee-shifting") will create a disincentive against filing frivolous lawsuits.
As you can tell from the linked posts, I’m not a fan of fee-shifting. First, plaintiffs and plaintiffs’ lawyers have ample incentive not to file a weak cases and tremendous incentive not to file frivolous cases, which by definition have no chance of success. Second, fee-shifting punishes plaintiffs for doing nothing more than exercising their civil rights and punishes defendants for doing nothing more than mounting a defense. There are some special cases — e.g., those involving systematic fraud, like with False Claims Act or RICO Act cases — where fee-shifting makes sense, but not for common law tort cases like this one:
The Topeka, Kansas-based Westboro Baptist Church, led by Rev. Fred Phelps, preaches an anti-homosexual message. Members maintain that combat deaths in Iraq and Afghanistan are God’s retribution for America’s tolerance of gay men and lesbian women.
Church members have promoted that agenda with a series of intentionally provocative demonstrations outside funerals of servicemen and women who were killed in combat, during which they chant and hold signs bearing messages such as "Thank God For Dead Soldiers."
Church members staged such a protest outside the funeral for Snyder’s son, Marine Lance Cpl. Matthew Snyder, in Westminster, Md. Snyder’s son was killed in Iraq in 2006 when his Humvee overturned.
Does anyone doubt that Snyder was appropriately exercising his right to civil justice? Does anyone believe Synder should not be entitled to have a court and jury assess his claim?
Certainly the District Court and the jury did not: they awarded him $5 million dollars for invasion of privacy and emotional distress.
Westboro Baptist Church appealed. The Federal Rules of Appellate Procedure have their own cost-shifting provision, Rule 39:
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;(2) if a judgment is affirmed, costs are taxed against the appellant;(3) if a judgment is reversed, costs are taxed against the appellee;(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
The Fourth Circuit Court of Appeals reserved the judgment in Snyder’s favor on First Amendment grounds.
Thus, Synder now owes the Westboro Baptist Church $16,500 in costs. Thankfully there’s no Federal Anti-SLAPP law: if there had been one, Synder would have been on the hook for all of Westboro’s attorney’s fees and costs, not merely the costs on appeal.
Civil it may be, but justice it is not.