American Rule
Sen. Anthony Sykes (R-Moore), one of only five lawyers in the Oklahoma Senate. (NonDoc)

(Update: Days after the publication of this article, the Oklahoma Legislature amended another bill and reinstated the statute discussed below.)

A widely popular bill expanding rights for child victims of sexual abuse was amended quietly in the Oklahoma Senate to eliminate an important legal tenet called the American Rule.

The amended bill passed its final three votes by a combined total of 146-2. Gov. Mary Fallin signed it last week.

Shortly thereafter, attorneys around the state began to realize the American Rule had been terminated, thus forcing the losing party in civil cases to pay the legal fees of the prevailing party. Functionally, that would disincentivize citizens — especially low-income ones — from filing lawsuits in Oklahoma courts.

The saga could dramatically change the Oklahoma legal arena if lawmakers — now aware of what they really voted on — fail to repeal 28 words of new law that they appear to have misunderstood initially.

But it also highlights a strange statistic that some in the Legislature have spoken to NonDoc about on background this year: The Oklahoma State Senate entered the 2017 session with 48 members, only five of whom are lawyers.

Everyone hates lawyers until they need them (in the Legislature)

The fact that the Senate Judiciary Committee includes five attorneys and six non-attorney members should concern, well, everyone.

We first noticed the situation Feb. 28 when SB 762 unanimously passed a committee meeting without questions or debate, despite its enormous proposed changes to the discovery rule in medical malpractice cases.

That bill stalled shortly thereafter, but its author, Sen. Anthony Sykes (R-Moore), serves as committee chairman and amended HB 1470 six weeks later to eliminate the American Rule.

Known for his prickly nature and penchant for speeding through committee hearings, Sykes is one of the Senate’s five attorneys. The others are:

If Holt is successful in his February 2018 election for mayor of Oklahoma City, the law-writing body could be left with only four lawyers — one-twelfth of its membership — for next session.

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Lose a lawsuit, pick up the tab

How might the elimination of the American Rule affect the average citizen? Let’s look at a rudimentary example.

Imagine you slip, fall and are injured at, say, a McDonald’s fast-food restaurant owing to some sort of potential negligence on behalf of the store and/or its staff.

While traditionally your lawyer would be inclined to file your case, depose witnesses and negotiate the situation with McDonald’s lawyers, a legal landscape without the American Rule would make such action extremely dangerous for you, the victim.

If, for whatever reason, a judge granted dismissal of the lawsuit, you would be on the hook for the legal costs charged to McDonald’s by the company’s lawyers. Those could be as high as $300 per hour. Even a quick resolution to the case in McDonald’s favor could stick you, the injured party, with a $20,000 bill from the attorneys who opposed your claim.

“It’s called the American Rule for a reason. To my knowledge, there’s not a single jurisdiction in the United States that awards fees to the prevailing party in all civil cases,” said one Oklahoma attorney asked about the situation. “This would change the way that law is practiced in such a fundamental way that I don’t think anyone in this market can really predict its consequences.”

Whether level-headed lawmakers who have been alerted to this situation are able to do anything about it before the scheduled May 26 sine die remains to be seen, as does whether Oklahoma business interests would fight any rollback of HB 1470’s shocking Subsection 3 (embedded below).

But with all eyes staring at the ongoing budget drama, we hope legislators from both sides of the aisle at least give the value of the American Rule its day in court.

And we certainly hope more astute lawyers seek state Senate seats in 2018. Understanding the monumental impact of a 28-word amendment will always be important.

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Kevin McDugle

Rep. Kevin McDugle on sexual abuse: ‘I thought I might have been the only one’ by William W. Savage III