Item — HN Reader

The answer is in the article. There needs to be a financial mechanism to deter nuance complaints. A small penalty for lodging a complaint and losing.

This fee should help pay for the courts and reimburse and employer for time spent defending itself.

(With the judge / magistrate able to wave the fee on compassionate grounds)

5 comments

That deters honest complaints from poor plaintiffs. The Economist may approve, but justice shouldn't depend on the relative finances and/or power and status of the opposing parties.

Of course it does, often. But that's a pathology, not a feature to be proud of.

It's true that some complaints are irrational, vindictive, or vexatious, but the system seems quite good at identifying those already.

> 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'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.

If the system isn't actually going to give them redress then what benefit is there in consuming the resources of the complainant and the court only to end up with the same result? The problem you have to solve in those cases is how to make it so someone with a meritorious claim would have a high probability of winning.

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.

> Unless you can get insurance for the fee, significant amounts can be a big deterrance even when they're quite unlikely.

But then won't experts be offering that insurance on easy to win cases left and right?

> 1% might not deter, but I bet it still deters more than you want.

You don't actually want to deter meritorious cases at all, but we don't have that as an option. You can either have more false negatives or more false positives. Requiring either one to be zero is going to make the other one unsustainably large.

And that's the case even if there isn't any formal penalty for filing a losing case, because there is still a time cost. This is actually the "problem" AI is creating -- the time cost still isn't zero but now it's lower and therefore less able to serve its previous role of deterring frivolous cases.

> Especially because these non-experts don't know the actual odds.

Having something that can tell them that is essentially required regardless or they'll be continuously initiating cases with a <1% chance of success.

> But then won't experts be offering that insurance on easy to win cases left and right?

No, I don't think so. Too much research for not enough profit.

> And that's the case even if there isn't any formal penalty for filing a losing case, because there is still a time cost.

Time is cheap when your wages are low, while penalties are not cheap.

> Having something that can tell them that is essentially required regardless

It's not a binary between knowing the odds accurately or not at all. Even with good advice there will still be uncertainty.

This is a thing, and in the context of the article too. In UK, if an employment tribunal finds you’ve wasted the tribunals time they can and do order costs paid for both the tribunal and other party. Odd they don’t mention it.

As with most such things, though, what is needed are escalating penalties. If you're a Joe Schmo who files a complaint that turns out to be invalid, no penalty for you. If you're a rich jerk who files a bunch of such complaints, a few million maybe. If you're a giant company that is using the legal system to push people around, $50 billion.

Again, this is covered, to an extent. Speaking only for England & Wales, the courts have pretty broad costs powers. Especially if one party is bringing litigation unreasonably. There’s no ceiling to it either, it just has to be defensible.

It’s also on the court system to leverage procedure correctly to add safeguards against the kind of behaviour you describe.

I understand anecdotally the US system is more open to abuse of this nature, but I don’t know the details. This article though was specific to UK.

In Germany, the losing party pays 3x the court costs. The only issue is that everyone gets paid - the lawyer, the court etc. The only person that doesn’t get paid for their time investment is the person who is suing.

But as far as I understand in many lawsuits both sides lose at least for some of their claims/counterclaims, at least in business law. So court sees it as both sides lost, who should pay 3x?

The costs are allocated proportionally of course. If I were to reframe my earlier comment, the losing party bears the cost of litigation.

  s/nuance/nuisance/

what about a "rich loser pays" rule? if the losing side can afford to pay the other sides fees without getting close to bankruptcy they have to do it, otherwise it reverts to each side paying for itself.

that would encourage lawsuits against the state and big corporations, and make it less worth it to sue small businesses or your own employees. thats common sense because bigger more powerful organizations tend to be more evil (as in breaking the law because they can afford to pay fines) and money is a good measure of power in capitalism.