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2002 FINAL STATELEGISLATIVE PROGRAM CONTROVERSIAL ISSUE ISSUE: FEE SHIFTING ("LOSER PAYS") SUMMARY: With the election of Republican majorities in both houses of Congress in 1994, efforts were undertaken to rejuvenate a variety of tort reform proposals that had been thwarted by Democrats who had controlled the House of Representatives for over four decades. Among those issues that became legislatively viable for revision were product liability, medical professional liability, collateral source rule, limits on awards, punitive damages, caps on contingency fees, joint and several liability, and structured payments. A bill was submitted in the 1995 Maryland General Assembly to require courts to allow the prevailing party to recover legal fees and costs of litigation from the losing party. The bill was introduced only in the State Senate and was defeated by a large majority in Senate Judicial Proceedings Committee. Since that time, no serious effort has been undertaken to pass a "loser pays" bill in the legislature. Some Maryland statutes and court decisions define when attorneys’ fees and costs are available, and Maryland Rules provide for sanctions when actions are brought or pursued in bad faith. The MSBA opposed the 1995 Senate Bill because in the pursuit of discouraging "frivolous" lawsuits, the proposal also would dissuade potential litigants with meritorious cases from seeking legal redress. In addition, the bill did not define the term "prevailing party" which could have led to the unintended effect of more litigation, as the parties squabbled over who won and who lost in cases where there was a close call or a complicated settlement. The MSBA also stressed that the measure was anti-middle class, as the wealthy could afford to pay legal costs, large businesses could hire in-house counsel, and the poor would never be able to pay for their own attorneys, much less those court costs and fees incurred by the other side. MSBA 2002 POSITION: Monitor bills that require courts in civil cases to allow a party to recover their attorney fees and court costs from the other party. SAMPLE LEGISLATION:
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