Idaho’s civil court system seems to have a unique problem — not enough people are suing each other.
Civil filings in Idaho’s court system have dropped sharply in recent years, which has caused budget problems for the courts because a large portion of their funding comes from filing fees.
This seems like a pretty rare problem in the U.S. — and something many people would think isn’t a problem at all. Most civil court systems (including the federal courts in Idaho) suffer from perpetually overloaded dockets. The courts may be clogged elsewhere, but in Idaho, they can hardly attract enough lawsuits to meet their budget quota for filing fees.
This might actually be a sign of a healthy legal environment. But the more interesting issue is the reason this is coming up now by accident — the Gem State has suddenly backed itself into a “loser pays” rule in civil lawsuits, starting in March 2017, unless legislators change their minds.
It’s not that the state legislature just decided to do this. What happened is that the state’s Supreme Court has finally gotten around to interpreting literally the 1976 law on the matter. Word for word, it appears to impose a loser-pays system — the same system that most of the English-speaking world (but not the U.S.) uses for civil lawsuits. If you bring a lawsuit and you lose, you pay your opponent’s legal fees.
That original 1976 law gave judges a lot of latitude on whether to award legal fees — maybe too much latitude. By 1979, the state Supreme Court was aware that lawyers were judge-shopping, looking to get before magistrates who were less likely to impose fees on them if they lost. And so the court adopted a new rule of civil procedure that only awarded fees in cases that were “brought, pursued or defended frivolously, unreasonably or without foundation.” This put Idaho on roughly the same footing as Texas is today — not a true loser-pays system, but a state with a loser-pays mechanism for special cases.
Today’s state Supreme Court, however, has decided that rule was not in keeping with the spirit of the statute. But the Court is giving the state legislature until March to change the law or else allow the courts to go into a full-blown loser-pays system. Such a system could work well. But it clashes mightily with the typical American contingency arrangement, by which trial lawyers take civil cases to court in exchange for a share of whatever settlement or judgment the plaintiff manages to win. It would definitely change the calculus for trial lawyers — they would be far less likely to take iffy cases to court in Idaho.
Idaho’s legislature is fairly conservative and extremely Republican, but the plaintiffs’ bar does have some influence there, and a loser-pays system is the last thing they want. Legislators may well decide that the current system is fine and change the law to conform to the current practice — after all, if Idahoans were really suing each other willy-nilly, they wouldn’t have the problem of a dearth of lawsuits in the state. Still, if Idaho went to a true loser-pays system, it would be unique among the states currently.
