Notwithstanding the familiar meme of “run-away juries” and “frivolous lawsuits,” both of which exist but as flukes, statistically weak anomalies, our legal system generally short-changes the vast majority of meritorious litigants (whether plaintiffs or successful defendants). As discussed in the immediately preceding post (below), for example, many types of damages and harm are deemed “speculative” and, therefore, are not recoverable. If you are a civil plaintiff who has lost $X due to a defendant’s wrong-doing, it is extremely unlikely that you will net $X even if you sue and win.
You might win your lawsuit and, as the prevailing party, you might be entitled to your “costs,” which will undoubtedly be welcome news but there are two problems.
First, as all litigators (but surprisingly few clients, in my experience) know, “costs” do not include any of the client’s attorneys’ fees. Being able to recover “costs” but not “attorneys’ fees” is a bit like being allowed to feast at an all-you-can-eat buffet for $1, but being required to serve yourself with tweezers on a dime-sized plate. What first appears to be a sweet deal is, on further inspection, a rip-off.
Second, “costs” not only exclude “attorneys’ fees” — the big ticket cost (as most people understand the word “cost”)– they also exclude quite a lot of other things that people (and even trial lawyers) would normally think of as costs.