You have to separate two scenarios: plaintiff brings a justifiable suit but loses, and plaintiff brings an unjustified suit. The latter is handled through professional discipline of the attorney's involved. The former is not really a scenario where the plaintiff is at fault.
Just because you lose a suit doesn't mean the suit was unjustified. You know all those plaintiffs suing the banks over mortgage related issues? Most of those plaintiffs are going to lose, because they can't back up their claims with sufficient proof or the banks skirted but stayed on the right side of the law, at least technically. Should those plaintiffs pay the banks punitive penalties for bringing suits they lost? Should they even have to pay the banks' legal fees?
It's easy to throw around ideas like loser-pays when you have a clearly established preconception of who the "good guys" and who the "bad guys" are. But that doesn't make for workable policy. Bankers/private equity folks, etc, really think they're the good guys and the people suing them are just bitter because they got the short end of a deal they knowingly got into. The folks that work in petro-chem really think they're the good guys, and folks suing them for environmental harms are just hypocrites who want all the advantages of modern petrochemcial processes (pretty much every gadget you own is the result of a horribly polluting process) but aren't willing to put up with the inevitable consequences. I'm sure they'd love loser pays too, for situations where some investor ends up not being able to prove outright fraud, or where some community can't muster the evidence to prove that a chemical plant caused kids to get cancer.
Loser-pays is just a band-aid on what is a more fundamental problem with the patent system: the law has evolved to make patents a strong right with very ill-defined boundaries. That makes litigation protracted and expensive because you end up getting into the weeds of technical issues and whether this kind of thing is like this other kind of thhing that the court system isn't really competent to deal with. No amount of tweeking at the edges is going to fix that. The solution is to make patent rights narrower and more well-deliniated. Shift the focus to questions like whether the defendant unfairly competed with plaintiff by copying the plaintiff's IP instead of innovating themselves. These are things the court system is competent to handle (and has been for hundreds of years). When it can be easily seen whether clearly-defined legal rights have been violated, frivolous litigation naturally diminishes because the cost to prove allegations wrong goes way down, which makes the incentive to just settle also
> You have to separate two scenarios: plaintiff brings a justifiable suit but loses, and plaintiff brings an unjustified suit. The latter is handled through professional discipline of the attorney's involved.
Honest question: can you point to some examples where such professional discipline lead to a meaningful impact on the plaintiff's firm (it would seem that attorneys are not so scarce that censuring one or two at a large firm would do much damage), or another kind of meaningful reform?
I'm speaking from a position of relative ignorance here, but the only time I can remember hearing of an attorney being professionally punished in a career-impacting way was Mike Nifong. If it takes that level of egregiousness to get the legal profession's attention (and maybe it doesn't, hopefully you have some counterexamples), we're in trouble.
I don't claim it to be anything other than theater, but I think a lot of people clamoring for these kinds of measures resonate with this quote from The Wire (NSFW language):
> Honest question: can you point to some examples where such professional discipline lead to a meaningful impact on the plaintiff's firm (it would seem that attorneys are not so scarce that censuring one or two at a large firm would do much damage), or another kind of meaningful reform?
Large firms are repeat players with the court system. A sanction that's even nothing more than a note in a file is a scary thought when that firm will have to go in front of that same court in other cases day after day. For a large firm, it's not worth it to toe that line. That said, it still happens, e.g. http://abovethelaw.com/2012/08/benchslap-of-the-day-judge-co....
The situation is somewhat different for other lawyers. A single sanaction for a frivolous suit is unlikely to get you disbarred. That said, the threat of disbarment isn't illusory: http://www.calbar.ca.gov/LinkClick.aspx?fileticket=DPQeNI9Fz.... The California Bar disbarred or suspended 394 lawyers in 2011.
Note that sanctions can include financial penalties for both the lawyer and the client. To pick an example out of a hat: http://valawyersweekly.com/2012/12/21/baseless-suit-nets-san.... If a patent troll is bringing clearly frivolous suits, nothing stops a court from recognizing a pattern and imposing significant monetary sanctions. The problem is, the bar for "frivolous suit" is pretty high in order to avoid deterrming meritorious litigation.
Out of 242,000 members only 89 where actually disbarred in 2011. On top of that misconduct often has more to do with what happens at trial/pretrial than which cases are brought to court. So, while in theory there is a downside the reality is it's vary week.
PS: Also of note 2011 was an unusual peak for example only 17 people where disbarred in 2008.
There is no reason to limit the scope to only disbarred attorneys. Being disbarred is an extremely harsh penalty. It may mean finding something else to do with your life after decades of practice. Suspensions are also serious. They can be for years, and almost invariably mean the end of one's career at a large firm. Imagine a programmer being told he wasn't allowed to program for two years. What does he go back to after two years of working retail?
Comparing to other professions, the threat of licensure revocation is less in law than in say medicine, but not by so much where I'd argue the threat is "very weak."
In 2011, 365 doctors had their licenses revoked or restricted in California, out of 131,696 (0.28%). That's about twice as high as for lawyers (0.16%). See: www.fsmb.org/pdf/2011-summary-of-board-actions.pdf
Also, note that courts typically impose monetary penalties on lawyers and clients to sanction conduct that doesn't warrant suspension or revocation of license. Such monetary penalties are not common for doctors, but are also a source of deterrence.
I agree that the loser pays approach isn't appropriate across the board in all litigation. I do however think that in patent and copyright cases if a judge/jury determines the allegations to be frivolous you should be awarded extra damages from the patent troll. I think the spirit of the SHIELD Act is to deter trolls from abusing the legal system. Anything we can do to limit frivolous litigation is a positive step.
If the allegations really are frivolous, then the lawyer or the client bringing the claims can be sanctioned. The problem here is that the legal right is so amorphous that it's impossible to really determine when a claim is frivolous.
You're going to have a hard time finding a lawyer to bring a claim that someone breached a contract with you if you don't have any evidence there was ever a contract. The "professional death penalty" of disbarment is too scary to do shit like that. But with patents, you can credibly, at least under the law, claim all sorts of things in good faith.
Just because you lose a suit doesn't mean the suit was unjustified. You know all those plaintiffs suing the banks over mortgage related issues? Most of those plaintiffs are going to lose, because they can't back up their claims with sufficient proof or the banks skirted but stayed on the right side of the law, at least technically. Should those plaintiffs pay the banks punitive penalties for bringing suits they lost? Should they even have to pay the banks' legal fees?
It's easy to throw around ideas like loser-pays when you have a clearly established preconception of who the "good guys" and who the "bad guys" are. But that doesn't make for workable policy. Bankers/private equity folks, etc, really think they're the good guys and the people suing them are just bitter because they got the short end of a deal they knowingly got into. The folks that work in petro-chem really think they're the good guys, and folks suing them for environmental harms are just hypocrites who want all the advantages of modern petrochemcial processes (pretty much every gadget you own is the result of a horribly polluting process) but aren't willing to put up with the inevitable consequences. I'm sure they'd love loser pays too, for situations where some investor ends up not being able to prove outright fraud, or where some community can't muster the evidence to prove that a chemical plant caused kids to get cancer.
Loser-pays is just a band-aid on what is a more fundamental problem with the patent system: the law has evolved to make patents a strong right with very ill-defined boundaries. That makes litigation protracted and expensive because you end up getting into the weeds of technical issues and whether this kind of thing is like this other kind of thhing that the court system isn't really competent to deal with. No amount of tweeking at the edges is going to fix that. The solution is to make patent rights narrower and more well-deliniated. Shift the focus to questions like whether the defendant unfairly competed with plaintiff by copying the plaintiff's IP instead of innovating themselves. These are things the court system is competent to handle (and has been for hundreds of years). When it can be easily seen whether clearly-defined legal rights have been violated, frivolous litigation naturally diminishes because the cost to prove allegations wrong goes way down, which makes the incentive to just settle also