THE UNNAMED ASSOCIATE SPEAKS #6: Getting Serious About Frivolous Lawsuits
by the Unnamed Associate
Well, my last post generated quite a lot of comments and interest, so I feel obliged to follow up in one particular area.
Ted at Overlawyered thinks my analysis of what constitutes a "frivolous" lawsuit is fallacious (he called it "sophistry," which has a bit of an ouch factor to it), but I think when we're talking about something as important as restricting access to the courts, we need to know where one's starting point is. Hence, I defined what I think constitutes a frivolous lawsuit as "one that gets dismissed, either by a motion to dismiss because it doesn't state a claim, or on summary judgment because there's just no relief available under the law." I stand by that definition, and here's why.
Frivolous, by dictionary definition, means something unworthy of serious consideration. To me the only lawsuit unworthy of serious consideration is one that gets completely thrown out as a matter of law at a very early stage of the lawsuit. Of course I'm talking about what the law, as a matter of policy, should consider unworthy of attention – every lawsuit, no matter how stupid, is going to get serious attention from the person whose business reputation and/or personal finances are at stake. But if it takes filing a lawsuit to develop the facts to show that the defendant really isn't liable, is that so bad? Sometimes you just can't get at the information you need without the discovery mechanisms available during a lawsuit. Most of the time you can. If we feel that strongly about it, we should encourage lawyers to do more research before filing claims, perhaps by awarding attorneys fees. Of course, that additional level of oversight adds another layer of cost (and disincentives) to the process, which should be seriously considered; and judges will certainly be reluctant to award them outside of the most flagrant cases, but it's something.
Otherwise, if there is an actual factual dispute, then it's worthy of serious consideration in my opinion. I suspect that when Ted thinks of "frivolous" he thinks of something that people should be embarrassed to bring a claim about, something that is so minor most people shrug it off and move on, rather than sue. Some of those minor claims are appropriate in the associate divisions or small claims courts, though – that's why we have jurisdictional amounts. If something is worth more than $25,000 to someone, though, how can we call it frivolous? And if the claims are so minor they aren't even worth the court's time, then the elements of a particular cause of action, or the jurisdictional amounts, should be addressed. If the law allows a claim, and someone thinks it is worth his time to pursue, what's the problem?
A law school buddy of mine spent several months and several hundred dollars defending a traffic ticket he received, wrongly in his opinion. It was worth the time and money to him because, as a matter of principle, he hadn't done anything wrong. He could have paid the ticket and moved on, but he knew he was right and the police officer was wrong. He wasted the municipal government's time and money, the judge's time, the police officer's time in court, the time of the administrators who had to file the paperwork and call the case, but in the end, he won. Was it a frivolous claim? Yes, in the sense that he could have just paid the eighty bucks and saved himself and everyone else a lot of time and trouble; but since the law allowed him to pursue the claim and it was important to him, why not? Obviously here we are talking about a criminal case, which involves a slightly different cost-benefit analysis; but the same holds true in my opinion for the people who brought consumer claims to my law school's clinic. The cases resulted in a hundred dollars or two hundred dollars in damages, maybe, but the financial damages weren't the only issue at stake; legislatures take that into account when they create causes of action in the first place.
There is an important distinction to be made, I think, between "frivolous" and "exaggerated." I applaud the Daubert case for the same reason other defense attorneys do – we need more stringent guidelines on what conclusions should be drawn from different kinds of evidence. I despair when a plaintiff with $1,500 in chiropractic bills from a minor collision gets an $8,000 verdict – where did that verdict come from? But was the disproportionate verdict the problem, or the underlying claim? I think the verdict. The claim itself is clear – plaintiff got hurt in a collision and went to see a back cracker. There was a fixed amount of cost for care. Easy and straightforward. You hit me and caused me this damage. The disconnect between the facts of the case and the verdict is a real problem, one that won't be solved by disrespectful billboards.
In fact, I think the attitude displayed by the billboard actually feeds the problem, if you'll pardon the pun. Disrespect for the legal system in general, and lawyers in particular, keeps people (i.e., jurors) from taking claims seriously. All of this talk about frivolous suits and huge awards convinces people that the system doesn't work, that lawyers are corrupt, and that so many lawsuits are a complete waste of time. So why should they take it any more seriously than any other juror? As a juror, why not instead reward someone, as everyone else is getting rewarded, and hope that when it's my turn the jury does the same? Why should I conclude that a reasonable verdict in this case will even make a dent in the system? I just don't think that the billboard helps, is all.
This post is long enough already; I'll save the discussion of self-policing the legal profession for another day. Ted seemed to think that, because I wrote about the billboard instead of writing about the bad behavior of lawyers, I think lawyers are blameless when it comes to our bad image. I'd like to clear that perception up: The billboard was there, in my face that morning, so I decided to blog about it. I also wrote about medical malpractice suits last time because I know that's what those billboards are aimed at; and I wrote about doctors being held accountable because I think that's a better solution than damage caps. Just because I think doctors need more internal oversight doesn't mean that I think lawyers don't, too. The fact that I am concerned about the ridicule of the legal profession does not mean that I am not also "concerned about the behavior that led to the ridicule" in the first place. Unfortunately, because I blog here anonymously for job-related reasons, I can't point to my four-plus-years history of blog posts to establish my "street creds" as it were; so please don't jump to conclusions.
About the Author The Unnamed Associate is the pseudonym of a first-year litigation associate who works at a U.S. law firm. For more information, see her collected posts or Evan Schaeffer's introduction.