In most circumstances, plaintiffs and defendants in civil lawsuits in the United States are responsible for paying their own attorneys’ fees. However, fairly recent developments as a part of the larger tort reform movement have changed that rule- in some instances, states have begun to institute a “loser pays” or “English rule” system where the losing party is liable for the fees and expenses incurred by the prevailing party. Advocates for these changes claim that the new rules regarding payment of fees help rid the system of frivolous cases and make the civil justice system more fair and efficient. In reality, these rules are extremely harmful to individuals pursuing claims against larger corporate entities where the discrepancies between the resources available to both parties are more pronounced. Most people, including lawyers, are not aware of these draconian measures because they have little contact with the court system on a day-to-day basis.
Unfortunately, some of the victims of the tragic 2012 shooting at an Aurora, Colorado movie theatre have recently learned just how harsh this new shift can be in practice. After settlement talks broke down between the movie theatre chain and a handful of the injured parties and their families that had not previously settled, a federal judge in Colorado dismissed the case against the movie theatre. However, under Colorado law, the losing parties were automatically responsible for the movie theatre chain’s attorneys’ fees, a figure that topped out at $700,000. So, not only are these poor families still reeling from the loss of their loved ones, they are facing a truly enormous debt because their legal theory of liability against the theatre did not pass muster based on a judge’s review of the case. Just because a case gets dismissed does not necessarily mean that the cause of action was frivolous or lacking any merit whatsoever, and this mandatory penalty under Colorado law could be financially devastating to these families who have already lost so much.
Regrettably, Georgia also has a “loser pays” statute that applies in certain situations. The loser pays provision under O.C.G.A. § 9-11-68 is triggered if the defense makes an offer pursuant to the statute that is rejected and the plaintiff then fails to get a verdict that’s at least 75% of the offer. Under these conditions, the plaintiff is on the hook for the defense’s attorneys’ fees and costs from the date the offer expired through trial. There are ways of fighting the inevitable motion for attorneys’ fees and expenses that will follow a loss at trial (the offer has to be made in good faith to be considered valid, for instance), but most of the time these tactics are used to strong arm plaintiffs into accepting amounts that are below the true value of the case. Hopefully, cases like the Aurora shooting result will bring awareness to how unfair these kinds of changes truly are for ordinary people.