Idaho Senate backs bill to avoid new ‘loser pay’ rule for courts

BOISE – The losing side of a lawsuit would not be forced to pay the attorney’s fees of the winner under legislation approved the Idaho Senate on Friday.

The Senate unanimously passed legislation to keep Idaho’s current rule for when attorney fees should be awarded to the prevailing party in a civil case – rather moving to a new “loser-pay” system on March 1.

The Idaho Supreme Court, in a ruling this past fall, set the new rule to take effect on that date unless lawmakers take action. The 34-0 Senate vote sends the bill to the governor’s desk.

While numerous laws define when fees should be awarded in specific types of cases, the law at issue is a catch-all provision for when none of those apply. For the past 38 years, the rule in Idaho has been that fees are awarded to the prevailing party when a claim or defense is brought “unreasonably, frivolously, or without foundation.” The bill passed by the House would restore that standard.

If lawmakers didn’t act, the new standard would be that courts would award fees to the prevailing party “when justice so requires,” an as-yet undefined standard that was expected to be interpreted as almost always. Many in Idaho’s legal community feared that would prevent most Idahoans from going to court, because of the risk of an attorney fee award against them, should they lose, that could be many times the amount they’re suing over in the first place.