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Access to Justice

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.


  1. I’m not sure why that would be so. If you win most of your cases, and would be able to recover attorney fees in those, why wouldn’t that offset those (less than half) of cases you lose? A loser pays rule would be limited to reasonable attorney fees; an “expensive” private lawyer would likely have his fee request reduced to what is reasonable for the type of litigation involved.

  2. “Loser pays” would diminish access to justice. It would have a chilling effect on the ability of legal services attorneys to advocate on behalf of their clients. Because many poverty law issues are quite difficult legally, and we must fight uphill battles in terms of the law or the courts, in order to fully protect our clients’ rights, we must take many cases with only a 50-50 chance of success. We are successful in most of these, but we do lose some. Paying the attorneys’ fees of often expensive private lawyers each time we lost would drain us of funds and would probably require layoffs of staff and the concomitant reduction of client representation. Thus, access to justice would be reduced, not enhanced.

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