Stopping "Frivolous" Lawsuits

Stopping "Frivolous" Lawsuits
Anybody can sue anyone for anything - and get money for doing it. That is the impression some people have and all insurance lobbyists and the politicians who take their money keep talking about. And its true...partially.

The true part is that as American citizens we all have unrestricted access to the courts to seek justice for wrongs done to us, large and small, by anyone - regardless of how rich and well connected they might be. There is no group of people acting as gatekeepers to determine who is worthy of filing suit, or whether a suit can be filed.

So much for the true part. In practice, there are a lot of things preventing frivolous lawsuits from getting very far. To begin with, any defendant in any suit can file a motion for summary judgment, which essentially asks the judge in the case to throw it out. There are two kinds of summary judgments: in the first kind, the defendant conclusively proves something that makes it impossible for the plaintiff to win. For example, a defendant accused of slandering someone can conclusively prove that the allegedly slanderous statement was true - which means that it can't be slander.

The second kind of summary judgment motion asks the judge to dismiss the plaintiff's case because he has no evidence to support his claims: for obvious reasons this is called a "no evidence" summary judgment. Either kind of summary judgment motion can be brought at any time after the parties have had a reasonable opportunity to investigate the case. The motion is decided by the judge alone, and the evidence at the hearing consists of affidavits and documents rather than live testimony.

A summary judgment motion typically takes only a few hours to prepare and less than that to argue. If the defendant wins, the case is over, no jury ever hears about the case, and the plaintiff must reimburse the defendant for some (but not all) of the costs associated with the case. This is not a new procedure dreamed up by tort reformers, by the way; summary judgments have been available to defendants for at least 50 years.

Both Texas and Federal law also have provisions that allow a trial judge to impose sanctions on either party for filing frivolous pleadings or motions. Not only that, but the attorneys representing the parties can receive stiff fines as well. These sanctions can and do range from a few hundred dollars and a humiliating tongue lashing to multi-million dollar fines. These provisions aren't new, either.

Of course, when the business lobby complains about "frivolous" claims being made in our courts, it isn't referring to the dishonest and groundless claims that many defendant businesses make, but only to claims made by injured persons against business. Speaking as a lawyer who has represented both plaintiffs and defendants in court for over fifteen years, I can promise you that there is no shortage of dishonest, "frivolous" claims being made by defendants - and that there is no shortage of dishonest businessmen paying defense lawyers big money to advance those frivolous claims. Neither defense lawyers nor plaintiffs lawyers have any monopoly on either honorable or dishonorable tactics.

Contingent fee plaintiffs' lawyers, of course, get paid only if a jury agrees with them—or if a defendant settles the claim because of the fear that a jury will do so. The inside joke among plaintiffs' contingent fee lawyers is that there is one, ultimate sanction for taking and prosecuting frivolous cases. If the defendant won't settle, and either the judge or the jury sides with the defendant, a contingent fee attorney loses all the time and money he put into the case. The ultimate sanction for the plaintiff's attorney who takes frivolous cases? Bankruptcy.

That's why no plaintiff's lawyer I know files frivolous cases. Why would I risk my time and my money pursuing a case I know I can't win? The answer, of course, is that I wouldn't - and neither does anyone else. That's why there is not now, nor has there every been, a "crisis" of "frivolous cases" being filed.