Wednesday, May 21, 2008

Frivolous Lawsuits

While one may think that "frivolous lawsuits" are either the product of the feverish imagination of right-wing "tort reform" Republicans, or alternately, that they are any suit filed that was not initiated by a right-wing "tort reform" Republican (like for instance, one filed by Robert Bork), those ideological definitions are not the real definition.

What a frivolous suit (and this applies equally within lawsuits for frivolous motions) is is a lawsuit (or motion) filed that has no basis in the law or in the facts (if the facts are taken in the light most favorable to the one filing the suit). Or, to get a more specific sort of definition, a non-frivolous suit or motion would be one that does not meet criteria such as those listed in Federal Rules of Civil Procedure Rule 11:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

On the flip side of the coin, if you don't meet those criteria with your suit or filings with the federal court, then you are subject to sanctions. States have similar sorts of rules for state court. So filing a frivolous filing with the court is not a free lunch - you can take a hit for it. On top of that, if the judge has half a brain, you will simply lose the frivolous motion, making the whole thing a waste of time and probably pissing off the judge. If the judge isn't so sharp, a truly frivolous filing that succeeds with a lower court will get reversed on appeal - appellate judges are not only usually quite sharp, there are usually at least three of them on any given case, and unlike trial judges, they have a lot of time to examine the legal issues before them (as opposed to trial judges who can be overworked, understaffed, and limited in time to look at each issue before them).

I laid out all of this background just to point out that there is a specific definition of what a frivolous suit is, what the consequences can be for filing one, and what the chances of success are if you do.

Of course, not everyone is a lawyer and so not everyone is aware of the above (and perhaps some lawyers aren't as aware as they should be). So perhaps some people can get intimidated by having a lawsuit filed against them that really has no merit, and then they fold and settle. The thing is, though, that probably anyone who doesn't understand the above (and who also can't afford to hire someone who does, i.e., a lawyer), also probably doesn't have enough money to make it worth suing them anyway. Anyone worth filing suit against would be able to afford an attorney. Now, one might think it is not fair to have to defend against a suit that is frivolous, but the truth is, if it truly is frivolous using the true meaning of the word, it should not take much time or effort (or money) to defend against it. You file a motion for summary dismissal and you win. End of case. And you also file a motion for sanctions against the other party for filing a frivolous suit and maybe even get your attorney fees back.

Now it is time to point out what is not a frivolous suit: A suit where you simply think the witnesses are lying, but where, if what they say is true, not only is the suit meritorious (because the claim is valid under the law), but the plaintiff should win the suit. Determining which witnesses are telling the truth (and about what they are telling the truth) is a matter for the fact-finder - usually a jury - not for a judge to decide, and no, not for the defendant or for the press or for the pundits to decide, either. You can't just summarily decide that you don't believe certain people, so they never get to go to court. That's what court is for. That's what due process is. Getting a standard, legal process to determine your rights, to determine the truth. And alarmingly, to a great degree, ideologically right-wing judges who buy into the "every suit is frivolous unless filed by one of them" bullshit are making more and more binding precedents that allow cases to be summarily dismissed even though there are fact questions about evidence, denying people their day in court (and essentially substituting their judgment for that of a jury).

At this point, some may complain, "but what about those witnesses who are so obviously lying or are otherwise clearly untrustworthy"? Or non-witness evidence with equivalent problems? Well, just because you get your day in court does not mean you will win. If a plaintiff's witnesses are truly so transparently full of b.s., the jury will see it, too, and so it is likely they will lose. And a defendant will know this, too. Which means that even a non-frivolous suit, when based on such weak evidence, still might not get very far. Unfortunately, this could also be dragged out, causing large legal bills on both sides. But if defendant has deep pockets (which it probably does, since otherwise, why bother suing?) and plaintiff does not, that game of attrition will just result in plaintiff losing a lot of money and perhaps just giving up. After all, why spend all that money for nothing? This is where the "tort reformers" say that this is used as extortion against defendants to get them to settle rather than defend a drawn-out suit. And maybe in some cases that is exactly what happens. But then again, maybe, just like with negotiation with hostage takers, the best action is to just defend every suit like that - then extortionists know not to waste their time (and money). In fact, that is the strategy I would use in that position.

Finally, for those that are still upset about the notion of a non-frivolous suit being allowed to go forward despite shaky evidence and shady witnesses, what really is the alternative? A group of people, witnesses, say that a defendant has wronged them in a way that, legally, entitles them to compensation. How do you determine if they really deserve to be made whole? How do you determine if they are telling the truth? How do you determine if they are just a bunch of liars who should get nothing? It oftentimes sounds to me like the "tort reformers" want them to be found liars, in advance of ever having any trial or even getting to file anything in court. How, exactly, is that due process? The simple fact is, we already have a mechanism in place for determining the truth of claims like that - it is called a trial. It may not be perfect, but it is the system we have. I know I'd prefer to have my day in court rather than having some powerful individuals tell me in advance that I don't get to have my claim adjudicated because they have decided, without any due process, that I'm not allowed to try.

I think a lot of the "tort reform" stuff is really trying to put the cart before the horse - trying to have a case adjudicated as good or bad before there is any actual adjudication. Which is, of course, nonsense. Which is why I always get annoyed when I see people call a suit "frivolous" when they know really nothing about it except for some small sound-bite in an article. Without knowing more, how can you really know for sure? Do you even know what "frivolous lawsuit" means?

I've thought about this a lot, though what triggered this particular posting was reading this post yesterday about a possibly frivolous suit filed about a baseball game. As I commented in that post, if the suit truly is frivolous, it will be dismissed by motion relatively quickly. And if the facts really are as stated, if there was nothing more going on than a baseball game with an unlucky hit to the heart, then it will be dismissed quickly. But as I also pointed out, as is often the case with complaints about "frivolous suits" - that fact will get buried and so we'll hear about this as an example of why we need tort reform based merely on the filing of the suit, without also finding out that the system worked just fine, thank you very much, by dismissing the suit.

That's why I get so annoyed with people who complain about "frivolous" suits who use as examples only the filing of lawsuits, not the final results. Those examples don't count. As I pointed out above, you can't put the cart before the horse. For all you know, the end result will be the case is dismissed and the attorney is sanctioned for filing a frivolous suit. Which is probably what has happened for some of the cases breathlessly touted as examples of why we need "tort reform." The truth is, no matter what system you have, no matter how much "tort reform" you enact, anyone could file suit on anything - that's not where anything gets decided. It is only the ultimate result after that that tells you how the system is doing. So using just the bare filing of suits as evidence of any need for reform is disingenous at best, and more likely a deliberate attempt at obfuscation and deception. The result matters, not what people try to do.

(To use a grisly example, it would be like trying to say the Berlin Wall is a failure by pointing out all of the people who try to cross it without also noting that almost all of them were gunned down and killed). Headline: 20 more people tried to cross the wall today! It is a failure! (and then hidden in the obituary section is the same 20 people).


The Barefoot Bum said...

Excellent post.

BTW: It's "suing"; "a lot" is two words. </ grammar nazi>

DBB said...

Thanks - and thanks for the nazi bit - I went back and forth with sueing and suing and finally just tried not to use the word at all. I confess I am sometimes lazy with editing when I do a blog post - I pretty much write all day at work and I try to post to relax.

Erin said...

In that same vein, can we please PLEASE stop with the damn McDonalds-hot-coffee lawsuit business? Everybody holds it up like this paragon of frivolity (frivolousness?), and nobody seems to know the facts of this case, that the plaintiff wasn't driving; she was so badly burned she needed skin grafts on her genitals, to which the defense said, Well, she's old and probably didn't need those, anyway; that she just wanted McD's to turn their coffee burner down so other people wouldn't be hurt, and she didn't even think about suing until they refused.


I think the notion of "frivolous lawsuits" just sounds like something convenient to be angry at, like "welfare moms" or "the liberal media." It almost seems like these people are just upset they didn't think of trying to get into somebody's deep pockets first.

The Barefoot Bum said...

I went back and forth with sueing and suing and finally just tried not to use the word at all.

Firefox 2 has a spell checker, and it's pretty easy to use an online dictionary.

I think the notion of "frivolous lawsuits" just sounds like something convenient to be angry at...

You're insufficiently paranoid. The conservative program is explicitly anti-populist; they have a well-established history of undermining any social or political mechanism that restricts the power of the elite and grants any power to the people as people.