If you’ve ever played poker without money, or for really low stakes, you know that it just doesn’t work. That’s because betting and bluffing are crucial elements of the game. With no stakes, or low stakes, there’s no risk to staying in to the end of each hand, so no one ever drops out and bluffing is impossible.
Even when there are stakes, there has to be an equivalent risk for each of the gamblers. Penny-ante players cannot compete against high rollers, who can drive the little guys out just by betting beyond their means.
Lawsuits are similar to poker in many ways. Without the option of hiring an attorney on a contingency-fee basis, many individuals would be unable to bring a suit against a large corporation, knowing that they do not have equivalent resources to sustain an action.
On the other hand, when plaintiffs and their contingency-fee attorneys risk nothing but their time, it’s the big corporation that finds itself in a no-win situation. The cost of a prolonged trial, even one that results in a judgment in the defendants favor, can be prohibitive.
Even when it wins, it loses.
Defendants are thus encouraged to settle cases they know they could win probably at too high a cost of legal fees, and plaintiffs and their attorneys are encouraged to file such cases in hopes of a quick settlement.
In an equitable judicial system, the odds do not favor one contestant over the other, but in West Virginia today they do. The plaintiffs have a definite advantage, but Sen. Patricia Rucker of Jefferson County wants to even the odds.
Rucker has proposed a “loser pays” system in which unsuccessful plaintiffs are held responsible for defendants' legal expenses. Lawyers filing suits deemed groundless would pay a penalty.
Senate Bill 342 won't be passed this time around, but, when it is, plaintiffs and their attorneys will have to reconsider their strategy. Bluffing will carry a substantial risk, as it should.