Background#
Recently, a case has been hot in the legal circle: Bank A sued Company B for repayment, while also demanding to bear the lawyer's fees. The judge did not support the lawyer's fees citing reasons such as Bank A's lawyer not fulfilling their duties.
The basic logic of the judge's ruling is as follows:
- The contract stipulates that B should bear the lawyer's fees. Based on the principle of fairness, A should carefully choose a lawyer and not arbitrarily increase expenses.
- The lawyer made many minor errors during the representation process, such as errors in document numbers and unclear understanding of the case facts.
- A did not fulfill the obligation to carefully choose a lawyer, so B does not need to bear the lawyer's fees.
Most lawyers naturally hold a negative attitude towards the above views, but there is not much serious discussion, and some even say that the court received nearly 4 million in litigation fees but did not support the 50,000 lawyer's fees. This kind of comparison is obviously just a rhetorical device and does not have logical significance.
Where is the problem with the judgment#
Firstly, there is an issue with the reasoning path. In cases where there is an agreement, the litigation request for lawyer's fees generally considers the complexity of the case, whether the amount is reasonable, whether it has actually been paid, etc. However, in this case, the judge bypassed all of the above and used the perspective of "moral risk" to turn the question of whether B should bear the lawyer's fees into a question of whether the lawyer is worth the price, which are two completely different things.
If we follow the usual train of thought, the case is not complex, but the amount involved is nearly 700 million, and the lawyer's fee is only 50,000, with a rate of 0.007%. This is basically a bargain price, no matter how you look at it, it cannot be considered too high. Moreover, from the lawyer's errors listed by the judge, it indeed shows lack of professionalism and care, but it does not amount to a major mistake, nor did it cause any losses to the client. It is clearly inappropriate to directly conclude that B does not bear the lawyer's fees.
Even if we follow the judge's 3-step reasoning, the first step is the major premise, which I agree with. This is similar to the "moral risk" in insurance: after purchasing car insurance, some people may not lock their cars or choose to drive more, thereby increasing the risk of the car being stolen or getting into an accident. The second step is a minor premise, which is a matter of fact, and I don't have much objection to it. However, it cannot be directly applied to the major premise. Unlike the example of a car, A cannot control the subsequent actions of the lawyer when entrusting them. On the contrary, it chose a lawyer at an extremely low price, and the result also met expectations, which actually saved money for the defendant B!
Issues beyond the judgment#
The lawyer's fee is so low, it can be basically confirmed that Bank A entrusted the case through a bidding process, and the bidding criteria are most likely to be the lowest price wins, competing on who has the lowest price. With little money involved, it is natural for things to be rough. After checking, the two representing lawyers have been practicing for 15 and 10 years respectively, not novices. They definitely have other cases with higher returns, so the energy invested here must be minimal, and making minor errors is almost inevitable. Although it is impossible to absolve the lawyer of responsibility, as an outsider, it is important to not only watch the cruel ecology unfold but also understand it.
Additionally, there is an interesting question. From B's perspective, would they prefer A to hire an excellent lawyer to beat them up or hire a mediocre lawyer to increase their chances of winning? Looking at it this way, this judgment appears even more awkward.