'Loser Pays' has not deprived anyone of any rights

Four years ago, the Houston Chronicle described our state's new loser-pays law as “an all-out assault on the ability of consumers and small business owners to seek legal redress.”

Opinions vary as to the accuracy of the Chronicle's reporting of current affairs, but this particular account of future news has proven fanciful.

The law was not designed to be – and has not turned out to be – “an all-out assault on the ability of consumers and small business owners to seek legal redress.”

In the two years that the law has been in effect, 60th District Court Judge Gary Sanderson has not seen a single Rule 91a motion.

Judge Milton Shuffield of the 136th District Court has only seen a few.

“I think the reason Rule 91 is not used much is it’s all or nothing,” Shuffield speculates. “There are other ways for defendants to attack without potentially subjecting themselves to having to pay the plaintiff’s attorney’s fees.”

Austin attorney David Chamberlain said in a recent issue of Texas Lawyer that he had not expected Rule 91 to get much use and is surprised it's gotten as much as it has.

“Those of us who were involved in the HB 274 legislative process did not think this procedure would be utilized much, mainly because the trial court is mandated by statute and rule to award attorney fees to the prevailing party on the motion. We just didn't think many defendants would risk having to pay fees, particularly when there is always a summary judgment motion available that doesn't carry that fee-shifting risk.”

It also could be that the loser-pays option is having the intended effect of creating a financial disincentive for filing frivolous lawsuits in the first place.

One thing we know for certain: it is not “an all-out assault on the ability of consumers and small business owners to seek legal redress.”