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I notice you’re leaving out another solution- loser pays. Yes this means personal injury attorneys will get more selective about cases they take but that’s probably not a bad thing.
There is an existing process for doing this against repeat filers of frivolous lawsuits. It mostly gets used against incarcerated individuals who file dozens if not hundreds of bizarre lawsuits, but it exists.
A concern about “loser pays” is that the payment only occurs when they, well, lose. If I can’t afford the up front costs, or if the settlement is much less likely to hurt me, I may have to go for it, as I can’t be certain that a case that I should win will go my way if it goes to court.
It also has a number of weird edge cases - for example, say that I sue someone for $10000, and my lawyer is going to charge me $1000 - if my opponent has deep pockets, they could hire a lawyer that costs them $90000, which means that if I lose, I lose $91000, which puts enough of a risk factor that I couldn’t afford to sue them, period, even if my case is good.
This happened to a friend of mine. He had a very good case, and the lawyer said, "Look, you've got a 95% chance of winning this. But the other side is going to hire the very best, most expensive guys in town. There's a 5% chance you'll pay millions in damages - can you handle that?" And of course they didn't have that kind of money.
If you do have a 95% case, you can get insurance against the risk of having to pay the other side's costs. (If your lawyer is taking the case on contingency, he has skin in the game and the insurance underwriter can see this.) This was a fairly standard part of English personal injury litigation until the rules were changed to make it unnecessary.
That’s interesting, I didn’t know. Thanks :) All ancient history now but an interesting case.
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The loser already does pay in the sense that any personal injury action is going to require a lot of up front money for medical experts, depositions, and the like before the defense is in any position to settle. And they're always going to settle because liability isn't usually as much the issue as damages are. Best case scenario for a defendant is that the plaintiff isn't as injured as he'd like you to believe. But even these cases are relatively rare since the costs of litigation and attorney time make anything under $100,000 simply not worth it for most plaintiff's lawyers. Low value cases that are actually filed are usually ones where the plaintiff is paying by the hour or the lawyer is taking the case on the side pro bono.
I'm any event, truly frivolous lawsuits are pretty rare. The ones that do get filed make the news for how unusual they are. When you hear about something like Trump suing the WSJ in a case he can't possibly win, he's paying his attorneys by the hour and isn't concerned about costs, and cases like this aren't going to be deterred by a loser pays rule. Any attorneys fees must be approved by the court, and courts are usually pretty stingy about rates charged and how many hours they'll let you bill. They could ironically make it worse, since a client is going to be disinclined to pay the balance of the bill after the court knocked half of it off.
Personal injury is a very different game because, as you say, there are very few lawsuits where there is a real dispute about liability, as opposed to haggling over the amount of damages.
The main problem with US personal injury law is that the conventional 1/3-of-damages contingency fee means that there are a lot of cases where the standard fee vastly exceeds the cost of litigating, and in line with econ 101 most of that surplus gets spent by lawyers competing to sign up the good plaintiffs. And that competition is mostly a negative sum game for non-lawyers, because chasing ambulances is anti-social.
The problem with personal injury law in England (which is loser-pays) is that plaintiffs' lawyers are more motivated to find ways of running up the fees they can recover from losing defendants than judges are to stop them. And each open loophole is a type of case where the collectable fee significantly exceeds the cost of litigating, and so an incentive to chase ambulances.
In both cases, the resources used to chase the ambulances ultimately come from overcharging businesses that injure people relative to the actual harm done. This causes additional harm by creating an incentive for excessive safetyism, and the financial cost is ultimately reallocated to society as a whole via liability insurance premiums.
And this matters for the debate about whether loser-pays curbs strategic lawfare. The big gain is that loser-pays makes a lawsuit with a negligible chance of winning at trial ineffective as a strategic weapon. The cost of a successful defence is a lot less (because you get reimbursed for most of it) and the cost of suing is a lot greater. The question is what it does to the strategic value of a lawsuit with a 10-20% chance of winning at trial. The consensus among likely SLAPP-victims in the UK (the media, campaigning orgs etc) is that if a deep pocket is using lawfare to punish critics, loser pays makes the problem worse by raising the stakes. Peter Carter-Ruck was notorious for finding ways of making defamation cases expensive to litigate, because when a billionaire is suing a newspaper it doesn't matter that the billionaire is going to end up paying two thirds of the time - the point it to drive the potential cost to the newspaper to the point where they cry uncle.
But in America in 2025, the ability to bring SLAPPS in forum-shopped jurisdictions (e.g. Musk vs Media Matters) probably dominates all the other issues.
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