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Poorly written bill leaves lawsuit loophole; Governor signs anyway

22-May-2017

When drafting legislation, it is imperative that language is clear and explicit. Ambiguities in the law can lead to unintended consequences, as judges must rule based on the letter of the law, not the spirit of the law. How awful would it be if your case was left up to a judges assumptions about what a lawmaker intended, rather than a clear, unambiguous statement of law.

Recently, Oklahoma legislators passed a bill containing an error that would create a massive shift in civil law and the way lawsuits are handled. Despite her attorneys pointing out the error in the bill, Governor Mary Fallin signed it into law anyway. Her press secretary said that lawmakers had other avenues for correcting the law before it takes effect on November 1, 2017.

So what happened?

House Bill 1470 was introduced as a measure to extend the time limit victims of child sexual abuse have in which to sue their abusers. During the committee stage, lawmakers added an amendment that would require the loser of such a case to pay the other side's legal fees.

However, when they committee typed up the amendment, they did not specify that it would only apply to child sexual abuse lawsuits. Instead, it was left so broadly written that the law actually requires the loser to pay all attorney fees in ALL civil lawsuits, including contract disputes and even parental disputes in divorce and child custody hearings.

Senator David Holt, who is one of the bill's authors, was informed of the mistake after Governor Mary Fallin's attorneys discovered it upon review. Holt said that the amendment--and the winner's award of legal fees--should only apply to child sexual abuse cases. However, Governor Fallin, despite knowing the error in the bill, signed it into law.

The specter of having to pay the other side's legal fees if you lose your case could stop many lawsuits before they even start, and it could lessen a plaintiff's chance for civil remedy. After all, if you were in a tight financial situation after a car wreck, you might think twice about even filing a lawsuit to get the award you deserve if you are afraid you might lose the case and have to pay the other side's legal fees. You would be even worse off financially then where you started.

Fallin's press secretary, Michael McNutt, said of the bill, "The governor's office notified authors of the legislation about the broadness of the language in the amendment and suggested they may consider correcting it in a trailer bill. Legislators who want to correct language in the amendment have several avenues they may pursue before the measure takes effect Nov. 1."

If lawmakers do not create a trailer bill to rectify the error, it revokes a 300-year tradition in civil law in which everyone pays his or her own legal fees. It will be interesting to see if legislators pay attention and change the gaffe or allow a massive shift in law because of careless wording.



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