In every western country - except the US and England - the loser pays for the cost of the trial (all parties' lawyer fees + the court).
Just this reduces frivolous lawsuits. If you have a good case, sure, go ahead. If your case is weak, you run a real risk paying not only for your lawyers but the other side as well.
(Note that there are disadvantages to loser-pays as well. Image you legitimately want to sue corporation X because they did something atrocious. Big corporation X can now run up lawyer cost that you have to pay if you lose.)
Edit: Sorry I was wrong about England (which leaves the US only).
Edit 2: In the US you can file for your lawyer fees to be returned, but that in itself is risk (I have some lawyer friends)
It should be noted that atleast in Germany, you can't just run up the lawyer bills. There are standard rates and you only pay "necessary costs". That means one lawyer. At standard rate. And only for what they did in the court room. That means what you pay the other side in legal costs is usually less than what you paid your lawyer. Though you pay other fees too and in total IIRC it usually amounts to about 150-200% of what you paid your lawyer after everything is said and done. If you are low income, the state can pay both lawyer fees, in fact, you can always request the state pay your lawyer, that's how we run the right to a lawyer to defend yourself (the state does not assign you one, you have to get one yourself).
This is entirely done so that the costs of a court case don't ruin someone's life forever. IIRC if you are low income, running a lengthy court proceeding won't be more expensive than a single lawyer in terms of the legal costs the court has you carry if you end up loosing. And even that depends because it's somewhat in the court to decide that, because we don't want to make people feel like they shouldn't sue for legitimate reasons.
Correct. I sued a party in Germany, won the case, got awarded 10K in legal costs (which actually was quite high, but it was a complete travesty) and another 25K in damages as well as annulment of whatever the suit was about.
Then the party I sued absconded to the US (he already had a house there and his family was already living there) and simply never returned.
The real legal bill was 50K. But at least the annulment stood and that was the main thrust of the suit.
Did you sue them as a company or as a person? Because AFAIK it is always a good idea to have lawyer insurance in Germany, however that would only work if you are a person, not a company.
As a company. Long story short, someone angled for years to have a partnership with us, finally got it and the day after the ink dried on the contract sold the rights to the source code to another company. That's not how that works...
In the US, the constitutional right to a lawyer only extends to defendants in criminal trials. Civil action, even you are sued by the government, is your responsibility regardless of income
Yeah in Germany that doesn't work. You have the right to a lawyer, even in civil action, even if you are suing, even if you are suing the government or the government is suing you. If you cannot afford a lawyer, the state pays it, you can pick your own lawyer. The argument is that if the state appoints a lawyer, the appointment is obviously not in your favor. Anyone should have the right to bring a slight or disagreement to court and anyone should have the right to get a lawyer to defend that.
In England, the losing side usually pays at least a large portion (if not all) of the costs of the winning side. 100% cost awards are rare, but generally the costs burden is placed on whoever loses.
This seems to reduce frivolous lawsuits (depending on who is suing/being sued) but you can ask for a cost capping order to limit the amount you have to pay out if you lose, which partially helps address the issue of "they're too big/expensive to sue".
An important detail: it shouldn't be (and as far as I know isn't) the loser who pays but the party who behaved unreasonably. For example, if you damage someone's property, offer to pay £100, but they refuse your offer and instead sue you and win .... £100, then you won't be paying their legal costs. In fact, they may have to pay your costs because they were being unreasonable in bringing the case to court after you had made a reasonable offer out of court.
Unreasonableness will have an impact as to whether costs are awarded and/or how much will be awarded but the general principle is still that the losing side pays. Obviously, that will vary depending on the circumstances of the case but most cases don't encounter costs objections on reasonableness grounds.
I trhink it's more complicated than that (IANAL). Isn't it most common to make such a settlement offer "without prejudice"? Then the fact that offer was made can't be brought up in court, so it can't affect the costs ruling.
I’m not sure about England, but in the US how it works is:
The party making the offer can make a part 36 offer (or state equivalent if it exists), which grants automatic presumptions of cost sharing if rejected and the case ends with a more favorable (to the offering party) settlement or reward.
They can do a less formal without prejudice save as to costs offer, which is one the courts can use to decide cost charging, but does not get automatic presumptions of how the sharing should work.
Lastly they can make just plain without prejudice settlement offers. Which won’t factor into costs at all.
Which type of offer to make depends on who (claimant or defendant) is making the offer, and how certain they are about the amount that will be awarded at trial.
For example if a defendant is making an offer that they are absolutely convinced is more than will be awarded at trial (with the idea being that it would cost less than doing the trial without any offer, and having the normal each party pays own costs rule apply), it makes sense to make it a part 36 offer.
However when making a lowball offer, or a reasonable one but that could well be less than what gets awarded at trial, a without prejudice offer is probably better.
On the claimants side, when making a offer that they are convinced is below what they will actually win it may make sense to make it a Part 36 offer. If making an offer closer to or above what they will probably actually win, a without prejudice offer could be more sensible.
A term often used is actually "Without prejudice, save as to costs".
The meaning they're going for is "by making this offer I'm not admitting guilt, but when we come to awarding costs the fact that I tried to end this without going to court should count in my favour".
These suits usually take place in east Texas, where people are unfamiliar with tech. Am from east Texas, have seen literal patent trolls open an office next to the court house. They wanted to build the web 3.0 (not web 3) bit only wanted to hire part time students. They made it look like big tech was stopping them from being successful. Their pitch to me was they had a strong patent portfolio.
No, in the UK, the loser will pay for court costs, in general. I had a bit of legal trouble a few years ago - the other side was trying to play "solicitor" to use the law as a way of extorting me (aka threatening to make criminal complaints over various (bullshit) things) so I had to hire someone to write a polite 'go fuck yourself' letter eventually. Solicitors are duty-bound to try and get things to settle out of court, so dealing with wanna-be solicitors is always a problem for them.
What's unique about the UK is that unlike actually civilized countries (incl. the US), there is no legal requirement to negotiate in good faith. It is expected for you to do so, but if the other side figures out that you haven't and tries to take you to court over that, then the English court system will say "tough luck". Manipulating the other side to your advantage should be expected, they said. There have been High Court cases that have established this principle. so doing business with the English is always possibly problematic (e.g. Brexit and all the lies, the mentality behind all that etc). Anecdotally, I have heard from foreigners that doing business with English people is more of a headache than with ones from other countries. And I have lived here long enough to 'understand' the English better than most Americans...
In the US, if you lose a patent lawsuit, you will often have to pay legal fees and costs (within reasonable limits). It's the same as the rest of the western world for these specific suits.
> Big corporation X can now run up lawyer cost that you have to pay if you lose
This is very much a consequence of the adversarial and very procedural (and costly) common law system as implemented in the US.
There's nothing stopping the US from passing new legislation to address exactly this downside.
The main issue is that the "big corp" can file seemingly endless motions to dismiss at any step (and then file for appeal, etc). But it seems perfectly possible to have a law that instructs the courts to by-default consider the merits of the other side without requiring that other side to also file whatever counter-motion to "yes, please keep the fucking suit going, because some random precedent from 1832 that google coughed up is almost surely bullshit, thanks y'honor"
Of course in many cases judges are elected. Which has its own very serious problems. [0]
The current workaround for the "big corp" problem is "class action", and they happen very frequently in the US. See also the small claims courts.
That said, the real problem is that the whole US system of torts/liability shifts a lot of responsibility on individuals, but in a way that's perfectly aligned with "mo' money = less worry" (Oh really? Who would have guessed.), because there are very few proactive, upfront, visible, legible pro-consumer regulations.
The most visible part is probably the endless EULA/ToS-style texts that nobody takes seriously [1] ... except courts. (See the famous case of a cruise ticket attached to a dissenting SCOTUS opinion https://en.wikipedia.org/wiki/Carnival_Cruise_Lines,_Inc._v.... )
US has fee shifting for frivolous patent litigations. for example, the NXIVM founder Keith Raniere paid out IBM's costs after he sued them for infringing one of his patents.
Automatic fee shifting has the opposite effect of discouraging anyone bringing forward a case that isn't a total slam dunk.
I don't understand how this is not enough to deter patent trolls. Aren't they afraid companies (who tend to have deeper pockets than individuals anyway) will just fight the law suit and, y'know, win?
Just this reduces frivolous lawsuits. If you have a good case, sure, go ahead. If your case is weak, you run a real risk paying not only for your lawyers but the other side as well.
(Note that there are disadvantages to loser-pays as well. Image you legitimately want to sue corporation X because they did something atrocious. Big corporation X can now run up lawyer cost that you have to pay if you lose.)
Edit: Sorry I was wrong about England (which leaves the US only). Edit 2: In the US you can file for your lawyer fees to be returned, but that in itself is risk (I have some lawyer friends)