Better Losers?

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Though a longstanding tradition in Europe, a "loser pays" rule for civil lawsuits–in which the loser in a lawsuit pays the winner's court costs–has yet to catch on in the United States. But that may change soon. And if it does, the federal government, of all things, will be setting the pace–and in criminal, rather than civil, court.

House Judiciary Committee Chairman Henry Hyde (R-Ill.) recently tacked a loser-pays amendment to a $31 billion spending bill that covers Justice Department appropriations. Hyde's provision would force the feds to pay "reasonable" attorney's fees to acquitted defendants. Judges can deny the award if they believe the government was "substantially justified" in taking the case to court. The House of Representatives passed the amendment by a vote of 340 to 84. It was expected to be considered by a House-Senate committee sometime before the end of 1997; Attorney General Janet Reno has urged President Clinton to veto any version of it that comes before him.

Federal prosecutors take about 4,000 cases to trial each year, and a Congressional Budget Office report estimates that a loser-pays law would cost taxpayers as much as $7.5 million per year. Justice Department officials have warned that the real danger would lie in the feds' deciding not to take weak cases to court.

Which is, of course, an argument for a loser-pays system. As Hyde told the Knight-Ridder Tribune News Service, "This should serve as a deterrent to the Justice Department, which is made up of human beings, capable of error."