Tuesday, May 16, 2017

Oklahoma legislature enacts bill (possible without realizing it) that may make it the first state to impose a "loser pays" rule in civil litigation

Above the Law is reporting that the Oklahoma legislature recently enacted a bill, now on its way to the Governor's signature, that may make the state the first American jurisdiction to impose a "loser-pays" rule in litigation.

The key provision, hidden in a bill supposedly about the rights of child abuse victims, lists a number of different types of civil claims, including torts, and holds that "[i]n any action brought . . . the court shall award court costs and reasonable attorney fees to the prevailing party."

One reason American jurisdictions have rejected this approach is that it discourages possible claimants from pursuing their claims for fear that they may end up with more debt.  Instead, the use of contingency fees provides a way for claimants to get access to representation and if the claim does not work it is the lawyer, who is more likely in a better position to take the loss, who might be financially affected by it.

Yet, "tort reformers" have always advocated for a 'loser pays' approach arguing it would eliminate frivolous lawsuits, although, anyone who knows anything about tort reform knows that the goal is not to get rid of frivolous lawsuits but to discourage valid ones.

Maybe, now that someone realized what is really in the bill, the Governor can be convinced not to sign it.  Otherwise, litigation will be very different in Oklahoma than in the rest of the US in the near future.

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