Should legitimate claims get full consideration in courts of law? That question is before the House Judiciary Committee tomorrow as it considers a bill that could make it harder to bring certain legal actions—harder, that is, unless you have very deep pockets. The House Judiciary Committee will take up legislation vaguely titled: “The Protect Third Party Litigation Funding from Abuse Act.” Conservatives, and anyone who believes in access to justice, should be concerned.
Nearly all lawsuits are expensive, but some are much more expensive than others. Consider a retiree whose investment account has been compromised when fund managers adhere to radical ESG politics. To sue for breach of fiduciary duty can involve extensive discovery and analysis by expert witnesses. Even a slam-dunk case might cost six or seven figures to pursue.
The same can be true of religious liberty or other anti-discrimination lawsuits. Imagine being fired for talking about the Bible, or being passed over for promotion because you don’t fit into the right DEI intersectional boxes. Just because a company breaks the law doesn’t mean anything is going to happen. Sometimes, litigation is the only way to protect individual rights and uphold important laws.
Enter third-party litigation funders, investors willing to back legitimate claims in hopes of being paid back when the case is won. These funders make it possible for the “little guy” to stand up against big, woke institutions.
Conservatives are used to donors paying for some of these cases, but there isn’t enough of that funding available. And sometimes, conservative donors are also third-party litigation funders, which lets them put even more resources into critical legal fights.
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The woke left does not care about third-party litigation funding because they control so many of the biggest corporations and law firms. For some reason, it is not considered third-party litigation funding when lawyers work pro bono or on a contingency. And there is no need for third-party funding when a giant company, state university, or government agency can pay for all the litigation it wants.
Attacks on litigation funding often rely on scary hypotheticals about conflicts of interest. Maybe a business competitor will fund frivolous lawsuits? Maybe the discovery process will be used to steal trade secrets? But every one of these abuses can happen with or without third-party funding, which is why courts already have rules and procedures to deal with these concerns. This is what judges do, and why the easy answer for third-party funding is to let judges review funding agreements and leave it at that. Anything more is a targeted attack on access to the courts.
Those pushing punitive regulations or taxation of litigation funding sometimes raise the specter of shadowy foreigners stirring the pot in American courts. Again, there is an easy answer: ban funding connected to foreign adversaries.
Access to the courts is a fundamental American right. It is essential to the rule of law. Unfortunately, the cost of litigation often tilts the legal playing field toward those with the deepest pockets. Third-party litigation funding helps to level the playing field so that even the “little guy” can bring complex litigation to vindicate his rights.
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