I have long been a critic of state and federal rules imposing costs on losing parties or those who turn down settlement offers, particularly when courts have little or no authority to waive costs. We previously discussed how a federal court ordering the family of a fallen soldier to pay $16,000 to the Westboro Baptist Church, an extremist organization that pickets the funerals of soldiers and Marines. Now the victims of the massacre at the Century Aurora 16 multiplex theater have been hit with a $700,000 bill to pay the defendant’s costs after losing their lawsuit. It is a variation of the “English Rule” where loser pays and something that I believe deters lawsuits against corporations and powerful individuals.
The problem arose when District Judge R. Brooke Jackson told the parties that he was prepared to rule for the theater during a conference call and urged the plaintiffs to settle with Cinemark within the next 24 hours. I do not disagree with the judge on the question of liability. There is only so much that a theater can do when faced with a madman bent on shooting people. James Holmes killed 12 people and injured 70 others in a 10-minute rampage at a screening of “The Dark Knight Rises.”
The theater offered $150,000 for all of the parties — clearly a low amount to be divided among dozens of victims and their families. However, the threat was that, if they did not settle, they could be hit with costs as a losing party. Colorado law imposes the costs on the losers. A deal was drafted for the three most seriously wounded to receive $30,000 each while the remaining 38 would split $60,000. However, one plaintiff balked and said that the settlement was insulting and too little. Plaintiffs scrambled to leave the case before the final order to avoid sanctions. Some 37 withdrew but 4 did not. That left them with a massive bill for costs.
Once again, I have always questioned the liability against the theater, but few people will sue such large corporations if they could be saddled with such crushing costs. We have Rule 11 to sanction frivolous or vexatious filings. This was not a frivolous case, even though I agree with the theater on the merits. Imposing prohibitive costs in cases of this kind can have a chilling effect on litigants in pursuing valid claims in my view. I would prefer a more balanced approach that gives greater authority to the courts. I am not against imposing costs in some cases but the blanket rules in cases like this one are too draconian in my view.
What do you think?
Those who assume family members were motivated by greed are ignoring some aspects of basic human nature. It is common to look for some meaning in the loss of a loved one, and one way to do that is to believe the loved one’s death will make result in some change for the better. Often plaintiffs in this type of suit are motivated by a belief that the lawsuit will cause some change in how things are done and result in increased safety. I agree the suit was legally frivolous, but it is unfair to believe the plaintiffs filed it out of greed.
Richard, they were not suing to force movie theaters to magically stop all violence in their places of businesses. They were asking for cash. Give me money. They did not counter the offer of $150,000 with a demand that movie theaters have gun detectors or some other nonsensical idea of stopping violence. They wanted cold cash
The family had zero reasons other than greed. They are evil and disgusting.
Halle-freaking-lujah!
It was a frivolous lawsuit. It was filed simply because the families wanted to turn their tragedy into a lottery win. It is obscene to the nth degree. The theater had nothing to do with the shooting no more than the city of Aurora had.
The only thing that would be better is if the lawyer who filed the lawsuit face severe penalties for filing such a frivolous money-grabbing suit
Litigation is a tough business and not for the faint of heart. The ground rules for this jurisdiction were clear and known to the players. You make a decision, take the risk and face the consequences.
You really shouldn’t be so modest. Be proud of what you are, and know that here you aren’t the only one.
Doctor Doctor, what ypu say.
How bout lettin me out today.
Ain’t no reason for me to stay. Cause everybody is far away.
Get me back on my feet again.
Get me back on my feet again.
Open the door. Set me free.
Get me back on my feet again.
– Randy Newman song.
This is for the wackos on the blog today.
The U.S. Government is who is responsible for setting up and drugging Mr. Holmes – who was not acting alone nor acting while in his right mind. The theater may or may not have been a co-conspirator.
I see that you are just as gullible today as you’ve been since you bought into the lie that Oswald murdered President Kennedy. Have another glassful of the Kool Aid that’s easier to swallow.
@Olly
I think ALL of your comments regarding this issue are spot on!
Thank you Autumn!
Karen S
We have policemen in our theater in North Charleston – right down the road from where Walter Scott was gunned down by Michael Slater, rogue cop… Oh the irony!
America’s Independent Judiciary was designed by the Founding Fathers to give voice to the powerless – those without any power or money. All that was required was that a Plaintiff could show harm or “legal standing” under Article III of the U.S. Constitution.
You could argue that the judge should have thrown out the case – since the Defendant (owner of the theatre) wasn’t responsible for the Plaintiffs’ harm in the first place.
I agree with Jonathan Turley that if a Plaintiff has legitimate “legal standing” (as determined by the judge) that the loser shouldn’t have to pay.
The federal court system actually subsidizes some Plaintiffs that qualify as low income, but won’t subsidize you if your spouse makes more money. In spousal abuse cases, the abusive spouse usually doesn’t support the lawsuit, so those Plaintiffs are out of luck many times.
America’s Independent Judiciary was designed by the Founding Fathers to give voice to the powerless
It wasn’t ‘designed’ at all. Constitutional provisions regarding the federal judiciary provide merely for a court of last resort which has some original jurisdiction as well. The construction of lower courts was left entirely to the discretion of Congress bar the tenure of office which was specified to be ‘good behavior’. The court systems of the states were derived from their colonial antecedents which were constructed with reference to British models. State courts were entirely reconstituted during the Jacksonian period, so do not incorporate salient features of the courts as they were in 1788.
It’s doubtful you’ll find one contemporary commentary which expresses the populist purpose you impute to them. “Giving voice” was the business of elected officials.
Colorado follows the English rule of shifting fees to the loser. The application of the rule, in this case, is a travesty, and, could be avoided on grounds of the court refusing to apply the law on equitable grounds. A federal court, hearing another group of Aurora families’ case, has also awarded defendant costs, but, has not specified an amount yet. I do not believe that a court would use its inherent power to deny costs, on an equitable basis, in a case like this, because the government does not like litigation discovery in these high profile cases that could lead to a departure from an official mainstream narrative.
The application of the rule, in this case, is a travesty,
Why? The four plaintiffs who continued to attempt to screw money out of the theatre chain were given fair warning. Unlike the other 30-odd plaintiffs, they continued with their suit. It’s exceedingly unfortunate for them, but when you go to war against someone, sometimes you lose.
The (30 – odd) plaintiffs should sue the (4 – odd) attorneys for the settlement they lost. The (4 – odd) plaintiffs should sue their (4 – odd) attorneys for malpractice and those (4 – odd) attorneys should lose their license.
As I said above, this (according to JT’s summary of the case) is not a matter of fee-shifting; it is taxation of costs. Normally, a settlement agreement provides that each side will bear its own costs. Since the plaintiffs lost, the defendants are entitled to recover their costs — filing fees, service fees, transcript costs, copying, etc.
That is the definition of fee shifting.
No, it is not the definition of fee-shifting.
“Fee-shifting” is requiring the losing party to pay the winning party’s attorneys’ fees. “Attorneys’ fees” and “costs” are two separate items. Losing parties are almost always required to pay “costs.” In this case, I suspect that the defendant’s attorneys fees run into the millions (presumably largely covered by some form of liability insurance). Given the enormous amount of the “costs”, I suspect that there were probably voluminous depositions of numerous fact witnesses — basically everyone who was in or near the theater — plus expert witnesses for both sides.
Losing parties pay costs under the “English rule” only a majority of American jurisdictions follow the English rule.
should read minoroty
The “English Rule” relates to “attorneys fees”, not “costs”. https://en.wikipedia.org/wiki/English_rule_%28attorney%27s_fees%29. See also https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fees).
A good solution is for the four families who got stuck with this bill to sue their lawyers for malpractice and make them pay. While I have little sympathy for corporations who do cause harm, in this case, it is simple extortion. I know of many cases that were won on spurious grounds and in one case forced Piper Aircraft out of business. Such lawsuits caused the general aviation manufacturers to cease production mostly, and until Clinton signed the Aviation tort reform bill, Cessna refused to make any aircraft. The liability costs are a significant part of the cost of aircraft, and so I am all for imposing costs on the losing side.
“What did the theatre do wrong?”
It shouldn’t have worn such a short skirt, metaphorically.
What did the theatre do wrong?
They failed to encourage their fellow citizens to elect lawmakers that wouldn’t leave them and their patrons defenseless against crazy, criminal behavior. Or something like that.
I agree with everything you said. There are no grounds for liability against the theater. I also agree with some of the comments above. The settlement would have ended the risk of fee shifting, but it wasn’t enough to being remotely close to compensatory. That said, receiving something when nothing were the damages attributable to the conduct of the theater owner, plus avoiding getting hit with a huge fee have value, so my questions are: 1. did the clients really fully understand the lack of liability and consequences, those being a huge fee award? 2. what did their lawyers advise them? If it was anything other than “take the offer or you are at risk for a huge adverse award”, then they received poor advice. If the lawyers advised them to take the offer and the advice was rejected, the lawyer should have asked for an extension of time for the court to rule, and then withdrawn on the grounds of a breakdown in communications with the client.
Keep in mind, these are court costs, _not_ attorneys’ fees.
“Title 28 U.S.C. § 1920 specifically provides that costs may be taxed for (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies; (5) docket fees; and (6) compensation of court-appointed experts and interpreters.” http://www.nlrg.com/public-law-legal-research/bid/85612/CIVIL-PROCEDURE-Recovery-of-Costs-in-Federal-Court-by-Prevailing-Party
$700,000 covers an awful lot of transcripts , copies, etc. I suspect that the plaintiffs tried to take the depositions of everybody who was in the theater. There were probably several expert witnesses on each side as well.
Sounds like the lawyers for the victims and their families gave some really bad bad advice.
Sue them.
Loser pays has always been a favorite of big money corporations and other privileged well resourced people with lawyers in the pockets. The chilling impact a law suits serves their purposes and impoverishes their victims a second time. It should not be permitted.
The plaintiffs were not ‘victims’ of the theatre operator, who was willing to pay protection money to get the plaintiff’s lawyers to go away. The villains here are the lawyers more than anyone else. All but 4 plaintiffs had the sense to get out of Dodge.
I’m with Ivan on this. In my view this was a frivolous case. I feel for the victims of the shooting. But the theater was not responsible. These people unknowingly picked a time and place to meet up with a madman. There is no way the theater could have known, nor printed the tragedy that was planned by a madman. Perhaps the victims could sue the lawyer for convincing them they should pursue this case at all.
How is such a lawsuit not frivolous in the first place? Someone comes into your place of business and kills a whole bunch of people and now you’re responsible? Madness.
I agree Ivan. If I throw a big party at my business location and a crazed maniac barges in and starts shooting up the place, how would this be MY liability? We all drive down the highways, right? So if some wack-job starts shooting at all the drivers then by this standard everyone involved should be able to sue the city for not protecting them on city property. Hmmmmmmm.
What’s your objection? That their is an impediment standing in the way of a lawyer and his next shakedown? Why should a businessman eat $700,000 in costs because our legal profession actually believes its dizzy (but lucrative) discourse on who is responsible for what? Apportion the costs as follows: 80% to the lawyers, 20% to the plaintiffs.