A recent story by The New York Times, “Texas May Consider a Bill Forcing Loser in a Suit to Pay Opponents’ Legal Fees” reports that in his February State of the State address, Gov. Rick Perry pushed a proposal that would require the losing parties in litigation to pay their opponents’ attorney fees.  Also known as the English Rule, because of its prevalence in Britain, the loser-pays approach, advocates say, is the cure for courts choked with the costs of “junk” lawsuits.  But opponents say it obstructs all litigation – without regard to merit – and keeps those without plausible legal claims from seeking justice.

Perry praised a loser-pays approach that would require “those who sue” to pay lawyers’ fees.  The prospect of a one-way loser pays system has put the state’s plaintiff bar on high alert.  The tort reform legislation is still being drafted.  Which version of the loser-pays will ultimately make it into the legislation is unclear.  Jenni Sellers, chief of staff to Representative C. Brandon Creighton says Mr. Creighton thinks any loser-pays proposal should be fair to both sides.  He believes “it’s a two-way street.” Ms. Sellers said.  “Not just plaintiffs pays, both whoever the loser is ends up paying.”

But in an op-ed article, “Loser Pays’ Next Step for Successful Lawsuit Reform in Texas” published in The Midland Reporter-Telegram, Mr. Creighton, along with six of his House colleagues, used language that suggested a focus on plaintiffs: “A plaintiff should be required to pay the defendant’s legal fees in cases where a court determines that a lawsuit is groundless or where a jury determines a suit is frivolous.”

W. Mark Lanier, a plaintiffs’ lawyer in Houston, said he did not have a problem with a loser-pays system, “as long as it’s fair.”  But Mr. Lanier said a one-way approach focused on plaintiffs was “blatantly anti-Texan” because of the barrier it would create for those who cannot afford the risk of having to pay the defendant’s attorney fees.