It’s only fair: Make the loser pay

England does it. Sweden does it. Even the Romans did it. They shift the costs of litigation to the loser of the trial, in a legal standard known as “the English rule.” They make the loser pay.

That’s not the way it is in Sue City, U.S.A. And that’s bad for American business.

Let’s look at the recent lead paint litigation in Rhode Island. The state Supreme Court reversed a verdict that found paint companies liable for lead paint cleanup costs.

Sherwin-Williams, NL Industries and Millennium Holdings spent a lot of money defending themselves in the trial. (It’s not clear how much.) And they ultimately won.

It wasn’t easy.

The case has festered since 1999, and included a hung jury in 2002 that raised both the legal stakes and the court costs. A second jury found for the state in 2006. This was the ruling reversed last month by the state’s Supreme Court. (See article .)

After celebrating the ruling, the three defendants made a sensible request under Rhode Island law. They have asked for their money back. To me, this seems as normal and fair as submitting an expense report upon returning from a business trip.

The plaintiffs’ lawyers expressed eloquent outrage at the mere suggestion that they should pay for the paint companies’ legal fees. They emphasized that a jury ruled for the state in a 2006 verdict (but glossed over the jury’s position in 2002), and pointed out that they couldn’t control the defense’s “excessive” costs.

But that doesn’t mean they’re not responsible. And Sherwin-Williams lawyer Joseph Cavanagh, seems to have a thorough grasp of cause and effect: “The [Rhode Island] attorney general made a choice to accept the costs associated with this lawsuit, when he filed it,” he said in a statement.

Rhode Island’s court has yet to rule on the court costs question. We’ll be watching with interest.

Meanwhile we’re promoting the English rule. The plaintiffs brought the case. The plaintiffs lost the case. They should foot the bill. That’s the simple and intuitive logic behind the system. Under the loser-pays system, plaintiffs in civil suits better be extremely sure of their claims. And litigants with frivolous cases will naturally think twice before filing.

Home product companies are often victims of alarming and false claims. The threat of lawsuits is a real and heavy burden upon those who sell products that build, improve, repair or decorate the home.

It isn’t fair, judge. Making the loser pay makes sense.