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Opinion >  Editorial

Idaho lawmakers should refine loser-pays ruling

Idahoans will be the losers if the Legislature does not quickly clarify rules that could make unsuccessful litigants responsible for all court costs and lawyer fees; potentially tens of thousands of dollars.

The rule could shut poor and even middle-income Idahoans out of the justice system, but it does not have to be that way.

The Idaho Supreme Court, voting 3-2, in September said losers in civil lawsuits could be assessed all expenses “when justice so requires,” wording taken from a 1987 statement of legislative intent that was supposed to guide the awarding of court and attorney fees in frivolous lawsuits.

But “justice” and “frivolity” are slippery metrics. Nothing has been done in the last 30 years to explain just what lawmakers meant to define as “justice.” Absent better legislative guidance, Idaho’s courts have been content to rely on the “American system” of fee awards, in which plaintiffs and defendants paid their own bills.

Proponents of the English system – mostly conservatives – argue that its requirement losers pick up all costs better discourages lawsuits they consider a nuisance, particularly to business, and more particularly lawsuits brought by patent trolls suing for huge damages based on dubious claims of infringement.

Patent cases continue to bedevil the U.S. Supreme Court, which as recently as last week agreed to hear a case that could end “venue shopping,” the practice of filing cases where friendly juries are known to award multimillion judgments.

Several states and the federal government allow the courts to impose some costs on defendants, but none go as far as Idaho courts could if the Legislature does not act.

Liberal states like New York, California and Illinois require those who allege unfair or deceptive business practices to pay court and attorney costs if they lose their cases.

Others, Texas and Florida among them, can impose costs when plaintiffs reject settlements, and judges or juries subsequently award lesser damages.

Litigants suing to oppress a defendant – reporters asking too many questions, potentially – might also end up paying all the court bills.

Federal judges have leeway to award court and attorney costs in some cases.

Idaho lawmakers have plenty of models they can look to as they draft legislation that will give state courts more guidance when awarding costs.

Most importantly, they must assure the courts remain open to all. Citizens with strong claims against a business or local government should not have to set their complaints aside for fear a court may rule against them, and make them pay not only their attorneys, but the other side’s as well.

Although the timing to the Idaho Supreme Court’s decision to allow loser-pays judgments is puzzling after so many years, members are right to demand the Legislaure act. Justice requires nothing less.

To respond to this editorial online, go to and click on “Opinion.”

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