PHOENIX -- A Southern Arizona lawmaker thinks those complaining of medical malpractice, product liability or even motor vehicle accidents might have second thoughts about filing suit if they could wind up on the hook for the other side's legal fees.
Rep. Ted Vogt, R-Tucson, wants state law altered to permit a "loser pays' system in lawsuits for civil damages. He is crafting legislation that will be introduced when the session begins in January.
"What we're trying to get away from is abusive lawsuits,' he said.
"This is just one more filter, versus somebody being able to take free shots at a company or a corporation or an individual,' Vogt explained. "What this simply says is, "Look, you know what? I might be on the hook, if I lose, for attorney's fees.' "'
And by forcing would-be plaintiffs to raise that question, he said, it will make them consider whether they really want to go forward.
Vogt, who graduated earlier this year from the University of Arizona College of Law, said there is precedent for what he is proposing. He said judges already have that power to award legal fees to those who win legal cases involving contract disputes.
And, generally speaking, attorneys who take personal injury cases for plaintiffs build in a provision to get their legal fees if they win by taking cases on a contingency basis.
Janice Goldstein, executive director of the Arizona Trial Lawyers Association, said her concern is that the threat to an individual of being on the hook for the legal fees of a major corporation could provide too much of a filter.
"If you have someone who's been injured by a defective Toyota that says, "If I sue Toyota for their car, I could be responsible for their attorneys' fees,' that could have a chilling impact,' she said. "And just because you lose a case doesn't necessarily mean it was a frivolous lawsuit.'
Vogt conceded the point. He said that's why he is crafting his measure to make the loser pays provision optional.
A judge would have to decide whether or not to award legal fees and, if so, how much.
"That way, what happens is the little guy doesn't get frozen out if a big company "lawyers up' with lawyers that get paid $400 an hour or whatever' and drags a case on needlessly, he said. "I think that takes away the freezing out of the little guy going up against whether it's a hospital or a corporation.'
Vogt also said he considers his proposal far superior to some alternatives being pushed by corporations, hospitals and doctors. They have proposed absolute limits on how much people who are injured or their survivors can collect in non-economic damages, ranging from compensation for their pain and suffering to punitive damages designed to punish wrongdoers for what essentially are intentional bad acts. Some states, like Texas, already have such caps.
For the moment, though, such caps are not an option here.
Arizona is one of a handful of states with specific constitutional provisions precluding lawmakers from setting limits on jury verdicts. And various attempts since 1986 to get voters to repeal or amend that provision have failed.
Goldstein said if Vogt is concerned about frivolous lawsuits he should also consider altering the laws dealing with appeals of arbitration decisions.
Goldstein said there are situations where there is no question but that a defendant caused specific harm to a plaintiff. But rather than settle or agree to the findings of a non-binding arbitration the company -- or its insurance carrier -- decides to take its chances in court.
"Perhaps if the insurance companies were put on notice that if you're appealing a case from arbitration over $1,000 or $2,000, and a judge could look at you and say, "Why did you waste everyone's time? You lost the case,' maybe it might be an incentive for some of these insurance companies ... to actually treat the injured party fairly,' she said.
Vogt said he is willing to consider such a change.