We Are All Dave McKenna XXXVII

Here's your daily link to Dave McKenna's brilliant "Cranky Redskins Fan's Guide to Dan Snyder," which we'll be posting until Snyder's dumbass libel suit gets decertified and locked out in the cold. Today's topic: The National Law Journal has weighed in on Wee Danny Bully's suit!

As with our previous foray into the SLAPP happiness of the whole thing, the NLJ headline asks, "Civil litigation as a predatory weapon?"

The Snyder case seems to highlight a basic flaw in the American legal system that is critical to Bork's point about predatory litigation. Nearly everywhere else in the world the legal system has some version of a "loser pays" litigation cost rule, which requires the losing plaintiff (or defendant) to pay at least a substantial portion of the winner's attorney fees and other out-of-pocket litigation costs.

But we don't. Instead we have what is generally called "the American rule" under which each side pays its own legal costs - win, lose or draw. This sometimes enables a deep-pocket plaintiff to bludgeon a much weaker defendant into abandoning whatever is at issue or agreeing to a draconian settlement, or a rich defendant to exhaust a plaintiff in an endless war of motions and discovery, without the case ever getting close to a trial on the merits.

Civil litigation as a predatory weapon? Deep-pocket litigants have the ability to use the high cost of litigation, along with the American rule on fees and costs, to deter their opponents. [The National Law Journal]

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