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Home » For Lawyers » Links & Resources » Alaska Bar Rag (Quarterly Newspaper) » Featured Bar Rag Articles--2000 to 2007 » 03-04 July-August 2003 Featured Articles » The editor wonders how Hammurabi might have construed the concept of "loser pays."

The loser pays...but not as much as Hammurabi might wish

By Thomas Van Flein, Editor

Alaska enjoys some fame and notoriety because of its wholesale adoption of the "loser pays" rule (with several exceptions not important here). What is important here is that the court system labels half the litigants "losers."

It may seem harsh to be labeled a "loser" (particularly when that label is affixed to a public document) and on top of the insult, of course, is the injury of paying a percentage of the other side's fees and costs. But in looking at other options, it is not so harsh after all.

Consider the "loser pays" rule set forth in the Code of Hammurabi, 1780 BCE (Translated by L. W. King). "If any one bring an accusation of any crime before the elders, and does not prove what he has charged . . . he shall be put to death." This would probably keep the D.A.'s office kind of edgy. An acquittal for the defendant would lead to an early retirement for the prosecutor. Verdicts would be taken by cell phone, well away from anxious bailiffs looking for the nearest D.A.

But the Hammurabi Code was strict with Judges also: "If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his decision, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall be publicly removed from the judge's bench, and never again shall he sit there to render judgment."

Wow. One error and you are off the bench. With a stiff fine just for good measure. Appellate opinions would close with a remand for further proceedings "consistent with this opinion . . . and appointment of a new judge." The obvious loophole in this code is that it only applies to written decisions, so I suspect most decisions were given orally, probably off the record.

Court employees were not overlooked. "If any one steal the property of a temple or of the court, he shall be put to death." That would make you think twice before pocketing that pen or stapler "for the home office." Actually, the death penalty seemed to be the standard punishment under this code for just about any infraction. Burglary . . . "If any one break a hole into a house (break in to steal), he shall be put to death before that hole and be buried." Robbery . . . "if any one is committing a robbery and is caught, then he shall be put to death."

Under the Hammurabi Code, tort reformers would blush. Medical malpractice insurance was non-existent, but physicians still paid dearly for errors: "If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off." Today's system of paying money damages for errors appears rather meek in light of prior law. Construction defect litigation carried high stakes: "If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death." If nothing else, this law would make the builder return your calls faster.

A successful defamation claim could lead to a physical mark against the tortfeasor: "If any one 'point the finger' (slander) at a sister of god or the wife of any one, and can not prove it, this man shall be taken before the judges and his brow shall be marked (by cutting the skin, or perhaps hair.)" Instead of money damages for personal injury, the defendant may pay with his own personal injury: "If he break another man's bone, his bone shall be broken." Even 4,000 years ago doctor's liens were honored: "If during a quarrel one man strike another and wound him, then he shall swear, 'I did not injure him wittingly,' and pay the physicians."

Other provisions were more enlightened. There was an act of God defense to repayment of debt contracts: "If any one owe a debt for a loan, and a storm prostrates the grain, or the harvest fail, or the grain does not grow for lack of water; in that year he need not give his creditor any grain, he washes his debt-tablet in water and pays no rent for this year." Today, of course, instead of washing our "debt-tablet" we would hold our credit cards under the sink for a minute or two.

There was even a progressive law ensuring investments, making the broker responsible for any loss, something a lot people today would likely welcome: "If a merchant entrust money to an agent (broker) for some investment, and the broker suffer a loss in the place to which he goes, he shall make good the capital to the merchant." Based on this, it would appear strict liability arising out of a fiduciary duty has an ancient basis. Of course even King Hammurabi could not envision Enron, Worldcom and other investment schemes causing us to "suffer a loss" in our retirement programs, because if he could have, the punishment would have been death. Or a mark. Or a broken bone. Or maybe just a cold-rinse. Anything but what we really have—a diminishing account that will allow retirement . . . for one or two months. In this sense, Wall St. has its own "loser pays" rule. Those of us with 401K's and other retirement accounts appear to be the losers, and how we have paid.

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