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

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Doesn't Europe use a loser pays system?

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sort of.

The European Tort system offers two parallel options for plaintiffs.
The plaintiff can choose either.

Option One is an adversarial approach virtually identical to our current Tort System, but with the requirement that the loser pays winner's costs. Payment is IAW a schedule of "reasonable" legal fees. That often involves a loser paying far far less than totality of defense costs, but it dissuades from frivolous action nonetheless.

Option Two is a Worker's Comp type system. Injured patients bring claims before a review tribunal, council or judge. They are responsible for determining if compensation is in order and, if so, how much. They authorize payment out of a compensation pool which is awarded to the plaintiff in short order (very different than here). For a patient to get paid, the judges do not have to find the doctor at fault, or that negligence caused whatever pain and suffering the patient is experiencing. They just establish that the patient/family has sustained a disabling or significant injury/loss. Compensation comes from a national fund paid for by a rough equivalent of malpractice premiums. The goal of the EU system is not to find fault or establish causation. It is to provide compensation to injured patients regardless of cause.

The vast majority of plaintiffs go with Option #2. Overhead costs for the EU system run 5-10%.

Because in the current US system only 46% of settlement money actually gets to plaintiffs, use of a European style system with a 5-10% overhead could nearly DOUBLE AVAILABLE SETTLEMENTS to US plaintiffs.

It would concomitantly eliminate cause for wasteful defensive medicine knocking 10-20% off of US healthcare costs.