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Lawyer bullies

  • April 10th, 2008

John Stossel’s column bewailing the US lack of the “English Rule” on litigation costs (simple loser pays) has interesting material amongst the usual dross in the comments string. What do you know of “barrattry” for example?.

It’s worth a look for New Zealanders, because wimpy judging here, over generations, has left us in a half way house between the English and the American positions.

We’re not as naked before the lawyer bullies as US defendants, because a successful defendant is likely to get an order against the plaintiff for about half his or her lawyer costs. But when the vindictive kiwi plaintiff is funded by legal aid (so cares nothing about costs) even the defendant who has done nothing wrong at all should often give in to the blackmail, because success almost never results in an order for the government to pay for the damage it has funded.

When our government is effectively suing you, the judges gang up with the government. So much for the lawyers and judges as defenders of the individual against the state. So in New Zealand the wrong to innocent defendants driven bankrupt is just as outrageously unjust as in the US.

Lawyers will sanctimoniously argue that it is not “fair” to force the initiator of a bad case to pay for all the loss they cause, because almost invariably there is some reason to complain. But what they really like is the power to affect others. Fine tuning who gets what when the case ends is satisfying. Loss of that power to interfere lies behind most lawyer opposition to clear, certain law.

One might suspect that fear of a drop in litigation could also be a factor. Certainty in costs awards deters the bringing and the defending of foolish cases. Of course it encourages the bringing and the defending of meritorious ones.

Maybe the litigation lawyers know that there are more foolish cases than meritorious ones.


  • Graeme Edgeler
  • April 10th, 2008
  • 10:37 am

Surely there are exactly as many foolish cases as meritorious ones.

Every foolish case to defend is meritorious one to commence; and every foolish case to bring is a meritorious one to defend…


The primary decision rests with the initiator. If the costs follow the result it increases the risks of a “try on” or “60:40” case. It also increases the potential rewards of defending that case. Thus fewer of those cases.

It works to incrase the value of bringing a strong case to the initiator, and decreasing the value of defending it (instead of settling). The defender should settle. Thus fewer of those cases.

In both situations the English rule should enhance the likelihood of the lawyers for both sides estimating similarly the likely outcomes in advance and advising the clients not to go to court on weak claims and not to defend strong claims.

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