Note: “Court costs” aren’t the same as “legal costs.” Legal costs include attorneys’ fees; typically each side pays its own way unless the plaintiff’s suit is held to be frivolous, in which case legal costs may be awarded to punish him/her. Court costs are merely administrative costs, but they follow different rules — and as you’re about to see, they can add up. Federal Rule of Appellate Procedure 39:
The following rules apply unless the law provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(3) if a judgment is reversed, costs are taxed against the appellee;
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
Snyder won at trial but, as I expected at the time, the case was eventually overturned on appeal on First Amendment grounds. (Ed wrote about it recently.) Lose an appeal and you pay the other side’s court costs — unless “the court orders otherwise.” Why didn’t the court order otherwise in this case given (a) Snyder’s financial circumstances, (b) the fact that the legal question at stake is serious enough to warrant the Supreme Court taking the case, and (c) the manifest indecency of picketing a dead soldier’s funeral? Well, funny thing. They’re not saying:
The Court of Appeals for the Fourth Circuit ordered Snyder on Friday to pay Phelps. A two-page decision supplied by his attorneys offered no details on how the court came to its decision.
The decision adds “insult to injury,” said Sean Summers, one of Snyder’s attorneys.
Snyder is also struggling to come up with fees associated with filing a brief with the U.S. Supreme Court, his attorneys said.
The idea behind the federal rule, I assume, is that the courts don’t want to dissuade people from filing potentially meritorious appeals due to fear of court costs. Which makes sense, except that unless your lawyer’s working pro bono, your legal costs will be vastly more expensive than your court costs. So why have a “loser pays” rule for the latter but not the former? And if the worry is that court costs are such a burden that they’ll discourage good appeals from being filed, isn’t it likely that they’ll discourage a few good lawsuits from being filed in the trial court too? If I have to worry about being soaked at the appellate level if I lose, maybe I decide that it’s not worth my while to sue in the first place.
Bill O’Reilly’s already said that he’s going to pick up the tab here, but if you want to donate to Snyder, here’s the website. The Supreme Court case should be fascinating, essentially a sequel to the famous “Hustler” case regarding the scope of the First Amendment in suits alleging intentional infliction of emotional distress. Snyder’s almost certainly going to lose, alas, but for legal junkies, it’s a treat.