Understanding the In Terrorem Effect of Litigation

[Bolares]

 

[Dioltach]

The American Rule, briefly, is that (absent a statute, rule, or contractual provision stating otherwise) each side in the litigation has to pay for their own attorney's fees and their own costs. In many other countries, this isn't the default- the default, instead, is the so-called, "Winner Winner Chicken Dinner Rule," which is that the prevailing party in litigation has their fees and costs paid by the loser. #Winner #IsCharlieSheenStillAlive?

In the Netherlands, this is subject to restrictions. Even if one party is ordered to pay the "full" costs, this will generally be capped (except in cases of frivolous litigation). Mostly, though, compensation for costs is limited to "reasonable" costs, and then usually according to a formula based on the work performed and the interests at stake or the complexity of the case.

 

[Ryujin]

In the Netherlands, this is subject to restrictions. Even if one party is ordered to pay the "full" costs, this will generally be capped (except in cases of frivolous litigation). Mostly, though, compensation for costs is limited to "reasonable" costs, and then usually according to a formula based on the work performed and the interests at stake or the complexity of the case.

In the US also. One of the most nototious "copyright trolls" has been censured for many things, including inflating the costs of his services. I don't think that he currently has a license anywhere, anymore.

 

[Snarf Zagyg]

In the Netherlands, this is subject to restrictions. Even if one party is ordered to pay the "full" costs, this will generally be capped (except in cases of frivolous litigation). Mostly, though, compensation for costs is limited to "reasonable" costs, and then usually according to a formula based on the work performed and the interests at stake or the complexity of the case.

In the United States, the general rule (at the federal law, and in many states) is that when you do get fees (through statute, rule, or contract), you use the lodestar method to determine reasonableness.

While it possible to recover more than you would normally earn (through a "multiplier"), this is highly unusual.

One issue that has come up repeatedly is that settlements allow attorneys to make much more than they normally would, such as in a class action case. Imagine this:

Class action filed.
Settlement is based on class members settling for X.
Attorneys get a percentage of X.
But the settlement is structured so that many class members will not go through requisite hoops to get their settlement.

 

[Maxperson]

Isn't there a War on Terrorem here in the U.S.?

 

[Ryujin]

In the United States, the general rule (at the federal law, and in many states) is that when you do get fees (through statute, rule, or contract), you use the lodestar method to determine reasonableness.

While it possible to recover more than you would normally earn (through a "multiplier"), this is highly unusual.

One issue that has come up repeatedly is that settlements allow attorneys to make much more than they normally would, such as in a class action case. Imagine this:

Class action filed.
Settlement is based on class members settling for X.
Attorneys get a percentage of X.
But the settlement is structured so that many class members will not go through requisite hoops to get their settlement.

I think that I got about $10.00 out of the settlement for the Canadian RAM memory price fixing scheme. Probably would have been about a quarter for the settlement in the bread price fixing scheme case and yes, in Canada we had a scheme in which supermarkets engaged in price fixing on, of all things, bread.

 

[Sepulchrave II]

B. The "American Rule."

Like other forms of exceptionalist traditions (firearms, healthcare, file-your-own taxes etc.), it's always good to see a practice which promotes such a positive and equitable outcome, and which doesn't support a vast, extraneous industry with a societally detrimental effect.

 

[Dannyalcatraz]

Like other forms of exceptionalist traditions (firearms, healthcare, file-your-own taxes etc.), it's always good to see a practice which promotes such a positive and equitable outcome, and which doesn't support a vast, extraneous industry with a societally detrimental effect.

 

[GreyLord]

• Pro bono. Attorneys are known for their generosity of spirit, and their goodwill toward mankind, and... uh, okay. Sometimes, an attorney will take on a case absolutely free of charge- this can be for a number of reasons, such as a young attorney at a large firm that wants to gain experience, a desire to advance the law in a specific area, or an interest in the subject matter. Pro bono, by the way, is Latin for “Giving the poor a bone, or boning the poor, whichever comes first.”

It's somewhat hard to tell when you are joking or not. Your jokes, mixed in with serious items (I think you are being serious in this thread in the post...for the most part...but things like this make me think...not so sure [with quizzical face], maybe?).

Pro Bono - For Good - For Public Good - For the Good Person - aka: For the Public Good - Nothing to do with bones really unless it's throwing a dog a bone I guess using an American slang (that is the right slang...right?) term in equating what it sort of means?

Pro - before/For
Bono - Person/Good Person

Then I figured you must be having a joke or giving off humor or something. Mixing Humor with the serious...but so dry that until you realize it...you may be taking the humor seriously!

PS: My Lawyers cost an arm and a leg, None would write something this long for free, they charge me like $30 for 3 sentences! Over $3500 for an hour's worth of attorneying...

At least on some of the things they work on for me at their business. The cheap ones under them (if it is something they can work on and I don't mind and what it's about and they can handle it individuallly) are about 1/10th that for billing , but that's still a LOT of money over time. Attorney's and Lawyers are EXPENSIVE!

But necessary.

So, I suppose you doing this would be considered Pro Bono?

 

[Snarf Zagyg]

So, I suppose you doing this would be considered Pro Bono?

Well, it's not like my required public service hours that I report to the bar are going to generate themselves! Although I might get pushback on the whole, "Writing weird posts on a TTRPG forum." They originally started because of the OGL stuff.

Anyway, if you liked that, I've written some others over time. If you're feeling masochistic, here they are all (I think?):

How to Do Your Own Legal Research: Worried about the OGL?

Greetings, fans of turning discussions about unicorns and dragons into protracted legal-ese (all three of you). As you might remember, I have previously cautioned people against tackling complicated legal issues and/or going pro se (roughly translated as “I like to lose without knowing why”)...

www.enworld.org

Law is Hard: Worried About the OGL (Part 2)

Now, my good readers, we have come to the second in the occasional series on the Law (having been roused due to the OGL nonsense). In order to understand why the law can be so gosh-darned difficult to understand at times, we must first answer a more simple question, as first posited by the Hon...

www.enworld.org

Why do lawyers write like that: Worrying about the OGL (Part 3)

So we are now on part 3 of the occasional series on the law- again, this is a general explainer about litigation, but has application to TTRPGs due to the current kerfuffle over the OGL. How to Do Your Own Legal Research: Worried about the OGL? Law is Hard: Worried About the OGL (Part 2)...

www.enworld.org

Understanding the In Terrorem Effect of Litigation

So this part of my ongoing and series of law-splainer threads tangentially discussing legal issues and related to nuTSR and the OGL kerfuffle. For prior threads, see the end of the post. Disclaimer: This is about litigation in the United States of America. Not other common law countries (the...

www.enworld.org

Boilerplate Language: Worrying about the OGL (Part 4)

Well, I made a promise to @LordEntrails ... so, you're welcome, I guess? I've previously posted some explainers on some fancy lawyerin' topics, and the two that are relevant to this brief(er) post are as follows: Why do lawyers write like that? Why does litigation cost so much? One of the...

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You Can Pick Your Nose, and Pick Your Attorney, But Don't Pick Your Attorney's Nose

The discussions in the nuTSR thread and reading about the various missteps of some of the attorneys hired by a certain individual involved caused me to do one my absolute least favorite things- that's right, I started thinking again. Anyway, after the usual cure (copious amounts of alcohol and...

www.enworld.org

Picking Attorneys is Like Picking Kickball Teams: Don't Pick Yourself

After posting the first thread about how to pick an attorney, I realized in order to address the question I first offered, I must first answer a more simple question, as first posited by the Hon. Jimmy McNulty- “What the eff did I do?” The answer, Jimmy, is that you tried to represent yourself...

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Different Types of Attorneys Will Be Bad in Completely Different Ways

Welcome back! After an initial thread, and a followup, I am back with a third thread discussing how to choose an attorney. Not all attorneys are created equal. Well, yes, you probably know that. It’s not like OJ Simpson proved he was completely and totally innocent with Lionel Hutz! But when...

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Attorneys- They're Just Like Mechanics and Home Contractors

I took a little time, eh? If you're catching up now ... where have you been??? This is ... well, kinda either the fourth or fifth post in the series on picking an attorney, depending on how you count. You can check out the first part here, and the second part here, and the third part here, and...

www.enworld.org