Advice to Trial Lawyers #3

Dear Mr. Schaeffer:

For years, I’ve been filing frivolous lawsuits, one after the other. So far, none have stuck, and if not for all my family money I’d be completely broke. But I’m still fighting the good fight on behalf of plaintiffs’ lawyers everywhere, ever since I read in the newspapers that filing frivolous lawsuits is what plaintiffs’ lawyers do.

Lately, though, I’ve been upset about the way all the political parties are abandoning me. The Republicans have always been opposed to frivolous lawsuits, but now the Democrats are talking about them too. Do you know of any candidate who is supporting frivolous lawsuits in this election cycle? I’m feeling very unwanted without at least a couple of politicians backing me up.

By the way, when I say “frivolous lawsuits,” I’m talking about lawsuits that are so factually and legally absurd that they are certain to scare the defendants into paying me millions of dollars just to go away. It hasn’t happened yet, but I’m sure it will soon!

Signed, a Hard-Working Plaintiffs’ Lawyer in Portland

Dear Hard-Working Plaintiffs’ Lawyer:

Thank goodness that there are still lawyers like you--lawyers who are willing to file frivolous lawsuits despite all the bad press. As you've learned the hard way, filing frivolous lawsuits isn’t easy. Most lawyers report that once their frivolous lawsuits are dismissed by the judge, they’ve got to waste additional time and resources paying off all the sanctions and fighting all the bar complaints. Even worse, as your experience makes clear, you have the problem that frivolous lawsuits never result in a settlement. It’s like putting all your money into a pile and burning it!

Yep, there’s nothing more dramatic than a lawyer with a couple hundred frivolous lawsuits to his name. Perhaps that’s why newspaper editors like to report rumors about it practically every day. And perhaps that’s why the current vice-presidential candidate, John Edwards, has had such a successful career. Did you know that like you, he spent all his time as a lawyer filing frivolous lawsuits? And just think, someday he might get to be the president!

So here’s my message to you: “Don’t despair.” If you keep working hard at filing frivolous lawsuits, there’s no reason that you can’t be the president too. Isn’t this one heck of a wonderful country? It almost makes me want to wave a flag.

Your friend, Evan Schaeffer

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Comments

[Prof. Yabut]

Of course, even John Edwards goofed up and won a pile of damages once in awhile. Can't hold that against him.

Ain't it ironic, though, that Sen. Edwards wants to limit his colleagues to a mere three frivolous med-mal cases? Just like all the nouveau riche, putting up a guard gate just as soon as they can afford a mansion.

[Jim Husen]

Rule 3.1 of the Model Rules of Professional Conduct states: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established."

As the comments to this rule point out a lawyer's undertaking of an action or defense for a client is "not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law."

In California, we are governed by Rule 3-200. which outlines the following as Prohibited Objectives of Employment:

"A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:

(A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law."

The bottom line as the author of the "Advice to Trial Lawyers #3" so excellently points out, it doesn't pay financially or professionally to pursue a truly "frivolous" case. It is, however, very honorable to take a difficult case for a difficult client.

[Christopher King]

You know, perhaps the frivolous filer should talk to New Hampshire Attorney General Kelly Ayotte: She filed a frivlous lawsuit against me for unauthorized practice of law, but at least we can see that the Court is willing to dismiss her attempted Summary Judgment motion and strike the bogus hearsay documents she attempted to use against me!

Yeah, I gave her a good thumping in the name of Justice:

http://christopher-king.blogspot.com/2006/10/kingcast-and-judge-groff-deliver-smack.html

Peace.