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Monday, October 31, 2011

Wisconsin Republicans Recognize Obtaining Attorneys’ Fees Vital to Ensure Justice (at least when it comes to rich litigants)

Wisconsin's Republican legislators recognize that often times the price of legal action will deter an aggrieved party from pursuing justice. Even if a person can afford to hire a lawyer and pay all the attendant costs of litigation, the personal economic benefit of taking some sort of legal action might not seem sufficient to justify the expense. But certain types of cases involve compelling public interests even though they might not involve a lot of money for the individual plaintiff. Therefore, in an effort to avoid having these wrongs go unprosecuted, the legislature made it so that plaintiffs that win certain types of other cases will have the losing party pay its attorneys' fees and other costs.

This includes certain actions such as challenges to administrative decision-making where the state is the defendant. The rationale for cost shifting in these sorts of cases is to rebalance the scales and prevent a plaintiff from being dissuaded by the state's superior resources.

But the state's resources are limited and paying an opponent's attorneys' fees and costs can be quite expensive, particularly given the frequency that the state is a party to litigation. Therefore, in an effort to balance the competing interests of encouraging aggrieved parties to pursue justice and to protect scarce public dollars, a compromise was struck resulting in the state agreeing to pay the costs and attorneys' fees for the all but the richest individuals and businesses who are presumed to be able to bear the costs on their own.

While repeatedly expressing alarm over the state's dire fiscal state, the state's Republicans have recently shown that ensuring access to justice is a priority worth expending scarce resources, so much so that it is given priority over other such vital matters such as fully funding health care for the state's most vulnerable citizens or providing adequate funding for the education of the state's children.

But wait. Aren't the Republicans the ones who have imposed draconian and arbitrary caps upon the amount of attorneys' fees that a plaintiff might recover in cases such as consumer fraud, making it so that these vital consumer protection laws will go unenforced and disreputable businesses may scam consumers with impunity? That sure doesn't sound like it is making justice more accessible for Wisconsinites.

Yes, this is all true. Republicans have decimated consumer protection laws in response to a major campaign donor being upset that he was held accountable for defrauding a customer. Yet at the exact same time that Republicans have effectively eliminated the ability for average consumers to have their costs paid by a disreputable business, Republicans have introduced a little-noticed provision that would repeal the income cap to be eligible to receive attorneys' fees and costs for certain actions against the state. This means that taxpayers could now be paying the legal fees of even the richest litigants. Even when the private business' resources, with its $500 / hour retained lawyers and bottomless litigation budget, dwarf those of the state, with its $25 / hour attorneys and cut-to-the-bone operating budget, the state may end up subsidizing the rich.

This proposal results in the state giving money it claims it does not have to wealthy private individuals and businesses that do not need it. In other words, it bears all the hallmarks of a banner Republican proposal.

Not only does this proposal result in a state that Republicans regularly claim is broke paying the legal bills of the richest among us, this proposal provides deep-pocketed private individuals and businesses with a strong incentive to run up the tab. The mere threat of the state having to pay hundreds of thousands, if not millions, of dollars in attorneys' fees gives the state an incentive to settle even the strongest cases rather than fight. And the more the private party runs up the tab, the greater the incentive for the state to settle a case. Even if the state perceives its chance of winning is 95%, if the payoff for winning is not great, the mere 5% possibility of having to pay to the plaintiff an inflated $500,000 bill that just keeps growing, it might make it worthwhile to compromise. The result is that a party with deep enough pockets is able to effectively extort the state, and the interests of all Wisconsinites, which the state's lawyers are supposed to represent in litigation, are compromised.

If Republicans now believe that income eligibility caps are no longer good public policy, I would not object to a consistent implementation of new philosophy. Eliminate income eligibility caps for BadgerCare, Section 8, Wisconsin Shares, WIC, and the Energy Assistance programs. But I think it is safe to say that no Wisconsin Republican will be introducing a proposal like this.

To roll back an income eligibility cap that effectively results in a government handout to the richest businesses and individuals under circumstances that are likely to undermine the interests of the state's citizens as a whole is inexcusable. To then do this at precisely the same time that Republicans are using the "we're broke" refrain as an excuse to cut programs for the state's most vulnerable is indefensible. And finally, to do this while cutting the ability for average citizens to obtain attorneys' fees for the injustices they suffer as a result of the fraudulent acts of corrupt businesses is downright unconscionable.

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