Comment by AnthonyMouse
10 hours ago
> That deters honest complaints from poor plaintiffs.
If the complaint has a high probability of success then it has a low probability of making the plaintiff pay costs. If it has a low probability of success then isn't that what we're trying to deter?
Probability of success and merit are different things.
For instance if you know for a fact that you have been fired due to your race (perhaps you were outright told this is the case), but have no evidence (you weren't recording and there were no witnesses), your case has merit (it really did happen), but unless you get lucky and some evidence appears in discovery your odds of success are miniscule.
I'd argue that in such a case preventing such a person from seeking justice would be wrong, since they were really victims and diserve redress.
I think there's a distinction to be made between "a nuisance complaint" and "a legitimate complaint whose presumptive odds of succeeding in court are less than guaranteed"
When the odds of success are 99% but not 100%, that's not going to deter a lot of people.
When the odds of success are 50/50, in this context that's a nuisance complaint because making it "free" to turn all of those into real adjudications would flood the system with exactly the cases where the outcome is unclear which are correspondingly the hardest to efficiently resolve. The only practical way to address that is to clarify and simplify the rules to begin with so that the outcomes are predictable rather than ambiguous, and then we're back to not really deterring anyone because it's obvious who is going to win.
And in the meantime plugging up the system with unlimited questionable complaints isn't very prudent.
People are more worried about the worst case than an imaginary average case. Unless you can get insurance for the fee, significant amounts can be a big deterrance even when they're quite unlikely.
1% might not deter, but I bet it still deters more than you want. 10% will deter a lot despite those being cases that should happen. Especially because these non-experts don't know the actual odds. Their fuzzy guessing range is going to include worrying amounts of failure chance even for very strong cases.