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I've seen that as well, but don't find it a convincing argument. It seems to me like that's the exact same situation as exists today. No individual can afford to bring a suit against a giant corporation even without having to pay their legal bills if they don't win.
That's...really not true. The big companies get involved in legal disputes constantly. There are employment disputes, products liability, premises liability, derivative shareholder actions, contracts claims, etc. etc. etc. You just don't hear about it much because:
not every legal dispute turns into a suit; sometimes the initial discussions after a demand letter is sent reveal one side or the other to be obviously correct, and so a resolution is reached before any suit is filed,
many disputes get swept up in binding arbitration (aka a civil suit's less-formal and more-biased cousin) rather than the actual courts, and
well-north of 90% of the matters that make it into civil court settle, almost always with confidentiality/non-disclosure clauses in the agreement.
Almost everything about the civil courts in the U.S. is designed to encourage this result; would you want your complex, potentially multi-million dollar civil suit to get decided on by a handful of whatever random weirdos weren't smart (or busy) enough to get out of jury duty this week?? Of course not! Also, lawsuit procedure is, as you say, expensive, both to the litigants and to the state (thus the taxpayer). There's a lot of people and infrastructure that go into running modern courts, and fighting modern lawsuits. It's also time-consuming and complicated, and not just for the lawyers you hire to handle the case for you! Discovery procedures can be quite invasive, and do you really want to spend your/your employees' time searching through years and years'-worth of documents to determine what's responsive to the other side's fishing-expedition-style requests**, particularly when you could get in real trouble if you screw it up and miss something? Do you want to have to hire expensive experts to testify to the scientific validity of things that you know, the other side knows, you know the other side knows, etc. etc.? Do you want to have to waste days in preparation for, and then actually sitting for, depositions? No, legal procedure sucks. You don't want to rely on it to resolve all your disputes if there's more efficient ways of doing so.
(Of course this begs the question of why civil procedure got so complicated in the first place, and what the point of the court system is if it's encouraging people to find alternate mechanisms of doing the one thing that courts are allegedly there for in the first place - authoritatively and conclusively determining the various rights and obligations of disputants, and satisfactorily resolving disputes. But this is not a history of American law, nor a treatise on jurisprudential theory, so I'll stop there).
** for the other lawyers on this board, yes I know discovery is supposed to not be a fishing expedition, but let's be real and call a spade a spade here.
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As a practical matter, it's very hard for any individual who's not very wealthy to afford a long, expensive lawsuit. Unless your lawyer thinks the chances of a big payoff are high enough to take it on contingency. But, right now sometimes that happens. People can sue big companies, and sometimes they even win. I don't think the problem of frivolous lawsuits is great enough to justify removing one of the few tools available for making corporations publicly accountable.
I disagree. The cases where a lawyer is going to take the case on contingency are vanishingly rare compared to all the cases where companies use the legal system to bully those with shallower pockets than themselves. And if your case is really that good, then a lawyer should be willing to take it on contingency even under a "loser pays" system. I think that there is very little downside to a "loser pays" system - yes, there will be very rare cases where someone will not sue a megacorp because they can't take the risk, but there will be far more cases where megacorps can't use the threat of legal fees to shut down competition like they can today. It's well worth it, IMO.
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Well, no. If you have a decent case your lawyer will take it on contingency and front the expenses and take on all the risk. There are some caveats, like you have to accept reasonable settlement offers (so you can't tilt at windmills), but it works fine for most people. Most companies settle.
Yeah, no. It's not exactly easy to get lawyers to take cases on contingency. The system does not in any way work fine for most people today, and legal recourse is available only for those with deep pockets.
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