Justice is expensive in the United States. Every citizen has the right to seek redress for his or her grievances in the courts. The problem is paying the bills. Lawyers’ fees are typically $75 to $1,000 an hour, and associated costs can amount to tens or hundreds of thousands of dollars, depending on the nature of the case. In the criminal justice system, where successful plaintiffs only get their freedom and the government only pays a small amount toward the defense of indigent persons, access to the best criminal defense in a serious case is restricted to the very rich and a very few high profile cases, such as the Oklahoma bombing defendants.

A medical malpractice trial can take one to six weeks. A trial of a complex business case frequently takes months; some have gone on for more than a year. Trials cost each party $2,000 a day and up, depending on the number of attorneys representing the party. Expert witnesses’ fees and expenses can add another $2,000 to $3,000 a day for every day or part of a day that the witness must be in court. For parties paying their own lawyers, a trial can be so expensive that any victory will be Pyrrhic. For plaintiffs represented on contingency contracts, a trial increases the expenses that they must pay out of any money they receive, but it is their attorneys who bear the major expense of the trial. The time, expense, and uncertainty of a trial is the major justification for the 30% to 50% of the award that a contingent fee client must give up to the attorney. Even defendants represented by counsel paid by an insurance company can lose large amounts of money because of the business they lose while tied up in the trial.

Although the insurance company pays all of the direct costs of the trial and these costs do not directly raise the defendant’s insurance premium, they must be recouped from all of those insured in the defendant’s insurance pool, including the defendant. Defense costs are a major factor in the decision to settle any lawsuit. An insured defendant may want to fight a case on principle, but it is usually a bad business decision to spend $150,000 to fight a case that could be settled for $25,000, if the defendant was negligent.

The most disturbing consequence of trial costs is that they allow a very well- funded party to punish an opponent, irrespective of the merits of the case. A wealthy surgeon can use litigation to force colleagues on a peer review panel to back down from limiting his or her privileges. A tobacco company can devote unlimited resources to fighting persons who sue for injuries caused by smoking.