A southern Arizona lawmaker thinks he's found a way to cut down on what he sees as frivolous lawsuits.
The proposal by Rep. Ted Vogt, R-Tucson, would let judges order someone who loses a lawsuit to pay all the costs and legal fees of the winner. He said it's only fair.
But the move is drawing opposition from the Arizona Trial Lawyers Association, whose members represent people who go to court with cases of personal injury, property damage, medical malpractice and wrongful death. Organization president Janice Goldstein said it's far too broad.
"Just because you lose a lawsuit doesn't mean it was a frivolous case," she said. "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."
That opposition made all the difference last year when Vogt pushed a similar plan. So this time Vogt said he is fine tuning his measure.
"There seems to be a great deal of resistance to straight-out ‘loser pays,'" he said. The new version, which is still being worked out, would instead leave the final decision on paying costs and legal fees to the judge that heard the case.
"I absolutely don't want to do anything to affect anybody's ability to go into court," Vogt said. And he promised the measure will provide fairness - on both sides.
"If a big corporation ‘lawyers up' with 20 lawyers, at $450 an hour, and you're a Joe Q. Citizen coming into court and your one lawyer, if it was strict loser has to pay attorneys' fees, that might be a disincentive to go into court," said Vogt.
Goldstein said that's a start. But she said any measure, to really be fair, needs to recognize that abuses come in many forms.
"There are frivolous defenses being brought forward just to drag a case out, because a large corporation can do that," she said.
Vogt, an attorney himself, acknowledged there already are provisions in court rules for a judge to order one party to pay the other's legal fees.
But he said that depends on the court essentially concluding that the legal action was brought in bad faith or for harassment purposes only, something that is very hard to prove. And Vogt said attorneys for the other side may be loath to bring that claim, since filing such lawsuits could subject the other lawyer to an ethics probe by the State Bar of Arizona.
The ability of lawmakers to reduce jury awards is limited.
Arizona is one of a handful of states with specific constitutional provisions that bar legislators from imposing limits on the rights of individuals to sue for damages. And multiple attempts by various groups to repeal or amend those provisions, going back to 1986, have been defeated by voters.
Vogt said, though, he believes that, other than a "loser pays" system, there are things that lawmakers can do which would be constitutional.
One would be to alter the rules of what lawyers call "comparative negligence."
The basic premise is that the portion of damages a plaintiff can collect is limited to a defendant's share. So if someone trips on a broken sidewalk and incurs $10,000 in damages, but the jury determines that person is 20 percent at fault for not paying attention, the property owner is liable for only $8,000.
Vogt said the problem with that is someone who is 99 percent liable for his or her own injuries still can file suit - and cause a defendant to spend money on legal fees - in hopes of getting some money in court or at least forcing a settlement.
Vogt said he wants to modify the law to deny any damages to those who are more than 50 percent liable for their own injuries.
"It's kind of getting people to think through their case and how much that case is worth and whether or not you proceed all the way through court," he said.
Goldstein called that element "a very unfair solution in search of a problem that doesn't exist."
She said there's nothing wrong with the current system where "everybody pays for what they're responsible for." And if a jury found that a plaintiff bore 80 percent of the responsibility for his or her own injuries, the final award would reflect that.
The problem with an arbitrary cutoff at 50 percent, Goldstein said, is it fails to account for situations where some award is appropriate.
For example, she said, a motorcyclist might be sitting at a stop light when another driver plows into him. A jury might conclude that the injuries would have been far less had the cyclist been wearing a helmet, even though that is not required under Arizona law, and determine that the driver of the car should pay only 45 percent of the medical bills.
Under Vogt's plan, she said, "the driver who caused the accident walks away scot free."
What that also means, Goldstein said, is the cyclist does not get any compensation for medical bills and might then qualify for free care from the state.
"That doesn't seem fair," she said. "The only entity that benefits from that is the insurance company" of the driver.