Tort and retort: should we make litigants pay for the court cases they lose?

• Author: Lewis, Anthony
• Position: Includes reply article

In a response to a proposal to reform the legal system published in a recent issue of this magazine, Anthony Lewis lays out the argument against forcing losing parties to pay winners' legal fees in civil cases. Charles Peters' reply follows.

Critics of our civil justice system argue that the American economy is burdened by frivolous lawsuits and inflated damage awards. They say they have a cure for the disease: Make the losing party in any civil case pay the winner's legal fees. The British do it that way, they argue, and look at how much less litigious a society theirs is.

The fee-shifting idea, as it is called, has won much support in recent years. It was at the heart of Dan Quayle's proposals for "tort reform." Charles Peters, editor in chief of this magazine, put it at the top of his list of "eighteen cost-free steps to a better America" (see "No Dollars, Common Sense," December 1992). If faced with the prospect of paying both sides' lawyers' bills, Peters said, plaintiffs would not bring frivolous suits and defendants would not use delaying tactics to prolong cases they know they will eventually lose.

It seems such a simple solution. But the consequences would not be as advertised--not in the real world. Consider a real case: the litigation between Robert Manning, writer and former editor of The Atlantic, and Mortimer B. Zuckerman, the real estate and publishing tycoon. Manning describes the case in his recent autobiography, The Swamp Root Chronicle.

Zuckerman bought The Atlantic in 1980 for $3.6 million, to be paid in four annual installments. He gave Manning a contract binding him to remain editor for up to five years and promising him pension payments. But shortly after the deal was made, Zuckerman removed Manning as editor and announced that he would make no more payments to Manning and the others who had sold their shares in the magazine to him. He said he was refusing to pay because the true financial state of The Atlantic had been concealed from him. The others, including the principal former owner, Marion Campbell, sued Zuckerman in federal court for the money owed. Manning could not, because he, like Zuckerman, was a citizen of Massachusetts at that time. He sued in a state court.

Five years passed--years of frustration for Manning. Zuckerman's lawyers used every conceivable tactic to delay the case. Manning could not possibly pay for the legal work needed to keep up with them, although he stayed in the game with financial help from Campbell. Then Manning turned 65. Under Massachusetts law, he was entitied to a speedy trial. The trial was set for Nov. 13, 1986, but on Nov. 12, Zuckerman's lawyers settled the case, agreeing to pay Manning every cent owed him for his...