re: Make an argument against a "loser pays" judicial system

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the vast majority of cases that lawyers take involve pretty clear liability, though. this would lead to more litigation (because you're incentivizing filing suit by increasing recovery in cases of clear liability)

i mean i can ask this again in a slightly different way. let's say you were hit from behind while in a car by another car (aka, 100% clear liability). why would you NOT tell your lawyer to sue and take the case to trial (assuming you could live without the money in the mean time)?

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That brings up a good scenario.

A rapper is in town for Essence Fest and rear-ends you at a red light. You sue, he hires some Johnnie Cochran type. The lawyer uses the Chewbacca defense and plays the race card. Racist jury finds for the rapper in spite of the clear-cut facts. Victim is already out medical bills, lost wages, and the damage to the car and now is on the hook for some high-priced lawyer's fees.

I hate to put a racist scenario like that out there, but that's what is takes to get through to people who advocate a blanket loser pays.

Better option is to target frivolous appeals and plaintiffs/defendants who drag out a case. So if you reject a reasonable settlement offer and then lose, you're on the hook for the legal fees from the point the offer was made. Same for filing an appeal that doesn't result in a more favorable outcome (ie, verdict overturned or modified in your favor.)