Access to Justice

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The Wisconsin Supreme Court is now considering creation of a non-profit corporation to address the issue of access to justice.

Over the years, many other proposals have been considered or adopted, such as imposing a $50 tax on every attorney in the state to finance civil legal services. One idea that is invariably ignored in Wisconsin when the issue is considered is adopting a loser-pays rule for reasonable attorney fees incurred by the prevailing party.

Recently, Marie Gryphon, a Senior Fellow at the Manhattan Institute for Policy Research, issued a paper arguing that, among other benefits, a loser-pays rule would increase access to justice, because under the current rule, too many meritorious cases are simply not worth pursuing without the possibility of recovering attorney fees.Anyone who has practiced law for any length of time has had to, on many occasions, inform a client that, however meritorious his case may be, the cost of pursuing it in court would exceed any recovery.

We already have numerous statutes that permit the recovery of attorney fees by prevailing parties. However, they are generally limited to consumer protection laws, and they are not reciprocal if the defendant prevails. If fee-shifting encourages access to justice in these actions, it may do so in all civil cases.

Perhaps, as I believe, a loser-pays rule would encourage access to justice. Perhaps, it would not. But the issue belongs on the table.

The status quo for considering these issues in Wisconsin must change. It is irresponsible to refuse to even consider whether adoption of loser-pays would be the most effective means of providing counsel to litigants of limited means.