 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Key v. Chrysler Motors Corporation12/29/1998
the duty to pay costs?) Costs might also be reduced or denied if the wealthier party improperly exploited its superior financial resources in a bad faith effort to wear out the opposition by driving up the costs of discovery, etc. But that was not the situation here.
{28} Finally, I disagree with the majority's view that the district court could properly consider whether an award of costs would discourage litigation. Does litigation serve such a useful function in society that we should refrain from discouraging meritless claims? After all, Key lost his lawsuit. If there is any trend in the law, particularly tort law, in recent decades, it is that one should bear the costs that one imposes on others. Why should we move in the opposite direction with respect to the costs of litigation? Key imposed substantial expenses on Chrysler by filing his unsuccessful claim. What is the social benefit in exempting him from reimbursing Chrysler for the customary items in those expenses?
{29} The only authority cited by the majority consists of three statutory provisions on costs. But as I understand those statutes, they are designed to enable a defendant to recover attorney fees when the plaintiff's claim is groundless. See NMSA 1978 ยงยง 47-9-7 (1991), 57-12-10(C) (1987), 57-13-6(B) (1987). None would preclude a prevailing defendant from recovering the usual costs.
{30} I am aware that on occasion courts have expressed concern about discouraging litigation by failing to award sufficiently high attorney fees or costs. The issue in those cases, however, is whether the prevailing party is adequately reimbursed. It is one thing to remove an impediment to meritorious litigation by trying to protect against an empty victory-when the cost of prevailing exceeds the benefits. It is quite another to subsidize losing efforts.
{31} As far as I can tell, for quite some time it has been considered desirable that a litigant take into account that if it loses it will have to absorb the opposing party's costs. Taking cost shifting into account encourages sensible behavior, including settlement. Indeed, the prospect of cost shifting is the foundation of Rule 1-068 NMRA 1998, which provides for offers of judgment. Defendants are encouraged to make reasonable offers by the incentive of escaping the obligation to pay costs incurred after the offer if the ultimate judgment is less than the offer. The rule likewise encourages plaintiffs to accept reasonable offers of judgment. If costs are not shifted in certain types of "desirable" litigation, the incentives of Rule 1-068 disappear.
{32} Perhaps the Legislature will one day decide that some types of litigation are so desirable that a losing plaintiff should not have to pay ordinary costs. I doubt, however, that litigation under the Motor Vehicle Dealers Franchising Act will head the list.
HARRIS L HARTZ, Chief Judge
|