Impact of loser pays vs American rule The rationale for the American rule, as I understand it, is that you should be able to file a lawsuit that you think has merit without having to worry that you might lose and be on the hook for the other side's expensive lawyers. In loser pays, on the other hand, you could be on the hook if you decide to litigate an issue and lose. The advantage, it seems, is that you're less likely to litigate issues that you won't win. If we look at studies investigating the impact of the two rules, quantifying the economic costs and benefits of the lawsuits filed or not based on rule differences, is one of them a clear winner? Or perhaps, one of them wins in certain types of cases, but not in all types of cases?
Several scholars have addressed this issue. Here's a quick bibliography. It appears that the most relevant "experiments" are the imposition of loser pays in medical malpractice suits in Florida for the first half of the 1980s, and Alaska's loser pays system. The Gryphon article below includes and discusses a decent amount of empirical data; the Di Pietro et al report is very extensive and has a lot of data. The Florida experiment resulted in a significant increase in suits dropped without settlement or trial, a significant decrease in the number of trials, and, apparently, one spectacular fee award in favor of a plaintiff, which impelled the Florida medical establishment to torpedo the law. Susanne Di Pietro et al, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases (1995), http://www.ajc.state.ak.us/reports/atyfee.pdf. Marie Gryphon, Assessing the Effects of a "Loser Pays" Rule on the American Legal System: An Economic Analysis and Proposal for Reform, 8 Rutgers J. L. &amp; Pub. Pol'y 567 (2011). Douglas C. Rennie, Rule 82 &amp; Tort Reform: An Empirical Study of the Impact of Alaska's English Rule on Federal Civil Case Filings, 29 Alaska L. Rev. 1 (2012). David A. Root, Attorney Fee-Shifting in America: Comparing, Contrasting, and Combining the "American Rule" and "English Rule", 15 Ind. Int'l &amp; Comp. L. Rev. 583 (2005) (student article) (not available online). James R. Maxeiner, Cost and Fee Allocation in Civil Procedure, 58 Am. J. Comp. L. 195 (2010) (not available online).
The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.")
In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures.
Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong.
Not only would it not be unethical to argue both sides of the issue, if the lawyer argued both sides of the issue and won on both sides, this would be proof that the lawyer is an excellent lawyer. Because the victory would be based on the lawyers skills and not on whether the law leans one way or the other. Speaking of ethics, I believe it would be unethical for a lawyer not to argue on behalf of one of his clients. A lawyer is required to represent each one of his clients zealously. If this means the lawyer has to argue both sides of an issue, as long as there is no conflict of interest between his two clients, then the lawyer must do so. Our system is an adversarial system. The system is designed to get a just result by having each side argue their own position in an adversarial setting. This means that the opposing lawyer could argue that the first lawyer is arguing both sides of the issue in different cases. However I believe a good judge would find that lawyer's argument to be irrelevant. Because the only arguments that are relevant would be the arguments based on the law and the facts of each individual case. In other words it would not be relevant for the opposing lawyer to argue that this lawyer frequently argues both sides of the case. As long as he is not doing so in this one specific case.
There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice.
I'm curious as to how the US legal system determines who should present evidence and how much evidence is required by them to prove one side of an argument against a counterargument. In General In both criminal and civil cases in common law legal systems (legal systems derived from the English legal system, basically, the U.S., U.K., Ireland, Canada, Australia, New Zealand, India, Pakistan and Bangladesh), the burden of proof is on the party seeking to have a court do something. So, if the absence of evidence, the party seeking relief loses. Proof Of The Elements Of The Charge Or Cause Of Action Presentation of Evidence and the Prima Facie Case The party seeking court action presents their evidence first. If at the close of their opening case that party has not presented enough evidence to meet their burden of proof with respect to every "element" of the list of legal elements that they must prove to prevail in court, that party has not established a "prima facie case" and the case is dismissed without granting relief. If the prosecution or party bringing a civil case establishes a prima facie case, or if the defense does ask to have the case dismissed for failing to establish a prima facie case at the close of the evidence of the party asking the court to do something, then the defense presents their evidence if the defense wishes to do so (this is optional). (If the defense does present evidence, the prosecution or civil party seeking relief can then present a rebuttal case to disprove the new points of evidence in the defense case, and so on, back and forth until all evidence is taken.) Evaluating The Evidence In Light Of The Burden Of Proof Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if every element of the case of the party asking the court to do something has been established by the relevant burden of proof. In a civil case, the burden of proof is usually a "preponderance of the evidence" (i.e. that the evidence more strongly favors that the element was established than that it was not established); some elements on some claims in civil cases must be established by the higher standard of "clear and convincing evidence." In a criminal case, the burden of proof is "proof beyond a reasonable doubt". Affirmative Defenses In addition to elements of a case that must be established to make a prima facie case, there are also "affirmative defenses" to a request that a court do something. Examples of affirmative defenses include self-defense, statute of limitations, immunity from suit, a pardon in a criminal case, etc. A defendant can win ether by showing that the party asking the court to do something has failed to meet their burden of proof with respect to one or more elements of the case, or by showing that an affirmative defense bars the request. In both criminal cases and civil cases, the burden is on the defense to show that there is at least some evidence that justifies consideration of an affirmative defense. This is called a "burden of production." In a civil case (and in some criminal cases in some jurisdictions), the burden of proof is on the defendant to prove an affirmative defense by preponderance of the evidence. In some criminal cases in some jurisdictions, once the defense has met a burden of production with regard to an affirmative defense, the prosecution must rule out the affirmative defense beyond a reasonable doubt to prevail. Deciding Who Wins Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if an affirmative defenses prohibit the party asking the court to do something from prevailing. The party asking the court to do something wins unless the defense can show that this party did not meet the burden of proof as to any one element of a particular criminal charge or civil cause of action (for each charge or cause of action), or that an affirmative defense bars that particular charge or cause of action. Often cases have conflicting testimony regarding what happened. The jury (or judge in a bench trial) can choose to belief that one person is telling the truth and that the other statement is either a lie or is unintentionally inaccurate for some reason. If the jury (or judge in a bench trial) isn't at all sure whose statement is true and whose is not, this favors the defendant if one is not more credible than the other. Complex Cases In a simple case, there is just one charge or cause of action, and there is just one defendant. But, often, there are multiple charges or causes of action, and each one must be evaluated as to each defendant of the multiple defendants in a single trial. In a civil case, sometimes there are counterclaims that defendants are trying to prove against plaintiffs, or cross-claims that defendants or counterclaim defendants are trying to prove against each other that have to be evaluated. Also, in civil cases, sometimes one or more of the defendants is also prosecuting one or more separate causes of action against someone other than the original plaintiffs or co-defendants. In that case, that defendant is also a third-party plaintiff, and someone other than the original plaintiff and defendants is a third-party defendant (third-party defendants can also bring third-party counterclaims against the third-party plaintiff, third-party crossclaims against third-party codefendants, or their own claims against new parties or against the original plaintiffs). Other Rules Special Statutes Regarding Proof Of Facts Sometimes, there are particular kind of facts for which a statute says that a "prima facie case" is established automatically if a certain kind of evidence is presented. For example, it is common for the law to say that a prima facie case regarding ownership of real estate, or the status of a bus as a school bus, is established by presenting a copy of an official document that says so. Usually, when a statute says something like that, the prima facie case can still be overcome, for example, by presenting a subsequent document that shows that the real estate was then sold to someone else, or that the school bus status of the bus was later revoked. But, when a statute like that is present, the plaintiff or prosecutor doesn't have a duty to prove the negative that there was no subsequent sale of the real estate or that the school bus status certificate was still in force on the date of the incident. Rules of Evidence There are also "rules of evidence" that govern what kind of facts can be presented at a trial to prove a case. For example, in a U.S. criminal trial a fact cannot be established with evidence that is hearsay, such as an affidavit or a statement that a witness heard someone else say and is retelling to the court. A very important rule of evidence in U.S. criminal trials that flows from the United States Constitution, is the evidence obtained by law enforcement illegally may not be presented by the prosecution, even if it definitively shows that a defendant is guilty. This is called the "exclusionary rule." Application To Facts Is it up to the prosecution to present full and complete evidence that the system only takes pictures when the bus is stopped (presumably reviewing source code or conducting tests) or is there some kind of legal concept of "good enough at a glance" evidence where they've met some minimum burden of proof that the picture is taken when the system is turned on and it's only on when the bus is stopped, therefore it must be functioning as expected? The prosecution has to convince the jury (or the judge in a bench trial) that every element of the crime as define in the statute has been proved beyond a reasonable doubt and that any affirmative defense upon which the defense meets a burden of production has been overcome by the relevant burden of proof. Usually, this is a broad legal standard, and the jury (or judge in a bench trial) has to decide if the burden of proof has been met by the facts presented which were legally admissible as evidence. It wouldn't be uncommon for a defendant to present no new evidence in a defense case (other than having cross-examined the prosecution's witnesses) and merely argue at the completion of the prosecution's case that the evidence presented didn't establish a particular element of the prosecution's case beyond a reasonable doubt. For example, the defense might argue that the picture presented by the prosecution was not taken when the bus was at a complete stop, and if the prosecution didn't present some convincing evidence that the bus was at a complete stop when the picture was taken (e.g. the testimony of the bus driver and other witnesses), the defense should win. But, it is almost always up to the jury (or the judge in a bench trial) to decide if the prosecution's evidence is good enough to prove beyond a reasonable doubt that the prosecution proved the case. Often a defendant will not want to call any witnesses beyond the witnesses presented in the prosecution case, because a defendant's witness might cause the jury to overcome its doubt that a fact only weakly proved by the prosecution was actually true, for example, when only one not very credible prosecution witness had testified regarding the same fact. If the identical case were presented to two different juries, one jury could decide to believe the bus driver who said that the bus was at a stop when the picture was taken, and a different jury could decide not to belief the bus driver, and both decisions would be valid. Consequences Of A Verdict If the judge or jury acquits the defendant in a criminal case, the case is over and there is no appeal. If the jury is hung (there is no unanimous ruling to convict or acquit (but see endnote)), in a criminal case, there is a mistrial and the defendant can be tried again. If the jury convicts, one of the grounds for an appeal by the defendant is that the evidence was insufficient to prove some element of the charge beyond a reasonable doubt, and if the appellate court agrees than the conviction is overturned and there can be a retrial (or in some cases, the defendant is acquitted). Appellate Review Of The Sufficiency Of The Proof The law recognizes that different juries could interpret exactly the same facts in different ways and will reverse a conviction because the burden of proof was not met only if "no reasonable jury" could have interpreted the evidence in a manner consistent with a conviction. For example, on appeal, an appellate court will always assume that the jury thought that every pro-defendant witness, whose credibility was questioned in any way by the prosecution, was lying and that the jury believed that every pro-prosecution witness was telling the truth, even if the defense presented evidence that could have caused a reasonable juror to question the truthfulness of a prosecution witness. Appeals for failure to prove something beyond a reasonable doubt can be easier in a bench trial than in a jury trial because following a bench trial the judge will often publicly state the actual reasons in terms of findings of fact and law that the judge used to reach a conclusion. So, the defendant need only show that a key fact actually found by the judge was not supported by the requisite proof. END NOTE Oregon State, and prior to 2019, Louisiana, did not require juries in all criminal cases to be unanimous.
No. Arbitrating rather than litigating when not required to do so by contract is almost never considered to be a legally compensable harm as a result of pro-arbitration legal policies. The consumer would be required to continue arbitrating and couldn't change course at that point. In practice, this fact pattern is unlikely, because the consumer needs the relevant details from the contract to commence arbitration. Other examples of unavailable contracts are hard to compare. It is a fact intense analysis.