"Loser Pays" Could Negatively Affect Personal Injury Claims in Missouri and Kansas

KANSAS CITY, MO, July 20, 2012

In an attempt to reduce the number of frivolous lawsuits, a law called "Loser Pays" is often bantered about. This law states that people injured in bodily injury claims arising out of matters such as automobile, truck, or motorcycle accidents, will be required to pay the opposing side's legal fees in the event that they lose the case.

While at first blush this may seem to be a valid method for discouraging baseless lawsuits, it could have a significant chilling effect on meritorious personal injury lawsuits for auto accidents and other motor vehicle and injury claims. Under the proposed law, personal injury attorneys and plaintiffs may be reluctant to file legitimate injury lawsuits as the outcome of jury trials can be extremely unpredictable. Thus, injured parties may become reluctant to seek compensation for legitimate bodily injury claims involving catastrophic injuries, such as paralysis, loss of limbs, brain injuries, and even death.

If a "loser pays" law is passed, it must also apply when the defense loses or it is tilting the scales further for the benefit of the already highly favored defense. Based on my 34 years of experience, frivolous defenses are far more common than frivolous claims. A bodily injury claim is usually somewhat akin to young David going into battle against Goliath, the giant--a tough challenge indeed.

Even if the law applies equally to both sides of a case, it will be a far bigger deterrent to injured people than to the party being sued (the defendant). The reason for this is the defendant is typically an extremely well funded insurance company or large corporation. Thus, any slap on the hands doled out by the court system will barely scratch the surface of their bank account and rarely gets their attention.

Lastly, it would seem that an appropriate solution is for the judge who has heard the case, and is familiar with the facts and the law, to determine whether the prosecution of the claim for bodily injury or the defense is without any reasonable basis in law or fact. In such an instance, the court then has the discretion to award an appropriate and fair amount for attorneys' fees to be paid by the losing side of the bodily injury case.

As of early 2012, this law has passed only in Texas. Thus, it is not yet a challenge for personal injury attorneys in Kansas City and throughout the states of Missouri and Kansas. A fair law can be presented to state legislatures which will truly protect our legal system from frivolous activity in personal injury cases.

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