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Notes -
I was having a conversation with someone about how rich people or large corporations being able to afford the best lawyers gives them a massive advantage in leveraging the legal system as a weapon against smaller actors. My instinctive naive solution was to enact a rule that any legal expenses must be matched by an equal donation to the opponent’s legal fund. The idea being that if you genuinely believe the law is on your side, you shouldn’t have to outspent the opposing side by X million dollars to prove it. Supposing this rule magically came to be, would this actually solve the issue and are there any major flaws/unintended consequences I've overlooked?
Alternatively, suppose the US had a true two-party state (instead of just a de facto one, since it gets more complicated with more than two opposing factions). Would an analogous rule for campaign contributions (any contribution to Democrats must be matched by an equal donation to Republicans and vice versa) work to reduce big-money influence in politics?
What’s the advantage of this over ‘loser pays’?
Personal injury lawyers would take a haircut, but I think that’s a good thing. The ghetto lottery should be harder to get.
To the extent that more expensive lawyers are actually better at winning cases, it reduces the role of raw monetary advantage in deciding who wins.
To the extent that the costs of defending a suit are comparable to the costs of prosecuting one, it reduces the effectiveness of intimidation suits.
A 'loser pays' system still allows the rich to apply significant stress simply by suing someone without the resources to mount a proper defense and in some situations would even doubly screw over the defense if they lose more due to weaker representation rather than by the merits of the case.
Loser pays doesn't prevent lawyers representing poor clients with strong cases working on contingency - in fact loser pays is complementary with contingency fees (called "conditional fees" in England) because the contingency only needs to cover the "uplift" over a regular fee to compensate the lawyer for the risk of not getting paid, whereas US-style contingency fees need to cover (in expectation) both the basic fee and the uplift.
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