Mark Behrens, co-chairman of Shook, Hardy & Bacon’s public policy group and chairman of the International Association of Defense Counsel’s civil justice response committee, told National Law Journal that third party litigation funding (TPLF) “can raise ethical problems” and lead to inflated litigation costs.
Behrens said TPLF emboldens plaintiffs to file requests for discovery that go beyond what is proportional to the case. Though defendants are able to ask the court to shift these costs to the plaintiff, TPLF makes these requests easier to absorb- encouraging longer, costlier litigation. Behrens said funding disclosure could help alleviate this problem, as defendants “may have more opportunity to convince courts that it’s appropriate for the plaintiff to pay what they’re asking for.”
The International Association of Defense Counsel in June was one of roughly 30 groups, led by the U.S. Chamber Institute for Legal Reform, that petitioned the Federal Rules of Civil Procedure to require outside funding in all cases.