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Litigation Costs: Getting the Other Side to Pay
Litigation costs are of chief concern in the settlement, determination, and outcome of a lawsuit. It is a reality in the legal world that if a judgment will not cover the legal costs, then a lawsuit is not worth it, and it will seldom be pursued. Defendants are likely to settle if the settlement is less than the predicted costs of defending the suit.
Litigation costs include hiring expert witnesses; the costs of a study, report, analysis, or other project ordered by the court; attorney hourly fees; court fees; copy fees; deposition fees; computer legal research services; secretarial and paralegal fees; external, consultant, and specialist fees; private investigation fees; costs in obtaining medical, school, and government records; accident reconstruction fees, and so on. The list is potentially endless.
In general, U.S. law does not force the loser to pay the winner’s litigation costs. The theory is that this allows all those with a grievance to have it heard in a court of law. However, opponents say that this system causes too many frivolous lawsuits, and forces defendants to pay out-of-pocket for any random case that is filed against them.
England still adheres to its old system of making the loser pay for litigation costs. Viewed simply, it seems like this would fairly inhibit frivolous litigation. However, complications arise when suits are appealed and judgments reversed, or with multiple defendants. Also, England’s system may only discourage the middle class from suing, acting as another burden on the middle class. Also, it may be a popular misconception that there are a high number of “frivolous” lawsuits in the U.S.
Despite the general rule, litigation costs can be awarded in two cases: when parties agree to it by contract, and when a statute (a law drafted by the legislature) specifically allows a judge to do so. In the areas of family law, civil rights / anti-discrimination law, copyright law, environmental law, and others, there are statutes in place allowing for the recovery of litigation costs. In such areas, parties are apt to commit willful, malicious wrongs against the public good, which are punishable through the payment of the other sides’ litigation costs.
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