Qwhat About All Of Those Crazy Frivolous Lawsuits
January 20, 2016
LOOK TO THE LAW:
Clients and friends have asked me many of the same questions over the course of my career. This is one in an ongoing series of “lawyer questions and answers”. Hopefully, this will be useful to you, or at least interesting.
A: Oh boy, I get this a lot. I don’t think you’re going to like my answer, but I will answer anyway.
There is a perception out there that lawyers are constantly filing frivolous lawsuits, which are clogging our courts, driving doctors out of business, ruining blameless businesses, and the like. This is one of the most popular myths in American folklore, and is so ingrained that people refuse to consider whether or not it is true. It is true because they think it is true because they have always thought it was true, and therefore it must be true. This is one of those myths which refuse to die.
For starters, I will say this. Once in a while, some nut does file a really frivolous lawsuit, it makes the papers, and everyone talks about it. The reason it makes the papers is precisely because it is unusual. Something which happens every day is not newsworthy. Frivolous lawsuits are newsworthy exactly because they are unusual. The vast majority of lawsuits are not frivolous.
There are both common sense reasons why the myth of frivolous lawsuits is false, and crystal clear statistics which prove it is false.
Here is a principal commonsense reason why the myth is false: Juries decide whether a case is frivolous or meritorious. That’s you. Juries are made up of you, the person sitting next to you on the train, the teacher teaching your kids, and the cop directing traffic. If you were called for jury duty, would you give an award in a lawsuit you considered frivolous? Of course not. Neither would the guy on the train, the teacher, or the cop directing traffic. No one would. Since a jury won’t give an award in a frivolous lawsuit, lawyers don’t bother filing them.
Here is another common sense reason why the myth is false: Essentially every litigation lawyer (“tort lawyer”) accepts his cases on a contingency fee basis of one third (1/3). That means he is paid that percentage of whatever his client receives. If he files a frivolous suit, prepares the case for years, spends thousands of dollars in expert witness fees and other costs, and the client loses, the lawyer receives 1/3 of $0… which is to say, nothing. Lawyers do not like to work for nothing. A lawyer is not therefore going to file a frivolous lawsuit where he is likely to recover nothing in exchange for years of work and thousands of dollars out of his pocket. For this reason frivolous lawsuits don’t get filed very often.
“Yes,” you say, “but the lawyer will file a frivolous lawsuit so as to get a settlement and he will get a one third fee on that!” No again. The only time defendants will offer a settlement is when they know a jury has a likelihood of entering an award against them. If the defendant feels that a claim is frivolous, and there is no likelihood a jury would ever enter an award against him, he will not settle a case. No settlement; no fee for the lawyer. Lawyers know this and will not file a frivolous claim hoping to get a settlement because lawyers won’t work for free.
There are other common sense reasons why frivolous lawsuits are not filed often. For one, a judge will quickly throw out a lawsuit on “summary judgment” if he feels that no reasonable jury could find for the person filing the suit. End of case. No case for the client means no payment for the lawyer. Any lawyer who regularly filed frivolous lawsuits would soon be broke and out of business.
Furthermore, in medical malpractice cases, the plaintiff must at the outset provide a sworn statement from a board-certified doctor swearing that his brethren, the defendant doctor, is guilty of malpractice. If this Affidavit of Merit is not filed, the judge throws the case out immediately, permanently and irrevocably. No case; no fee for the lawyer. No sane lawyer would ever take such a case.
Those are the big common sense reasons why frivolous lawsuits rarely are filed. “Okay”, you say, “but are there any statistics to back up what you say?” Yes, actually, there are lots. These are from the impartial National Center for State Courts, the Department of Justice Bureau of Statistics, Harvard School of Public Health, and National Practitioner (doctor) Data Bank:
-The number of negligence lawsuits has declined 25% in the last 10 years. (NCSC)
-The average award is not in the millions of dollars. It is $31,000, down 14% over the last 10 years. (Department of Justice)
-Only 5% of all lawsuits filed in court are negligence suits. The majority of all lawsuits are large corporation-against-corporation lawsuits.(NCSC)
-The injured patient only wins in 6% of medical malpractice lawsuits, and the number has dropped 35% in 10 years. (NPDB). The number of punitive damage awards against doctors is so small that it cannot be validly statistically measured at all.( Department of Justice) The New England Journal Of Medicine Reports, “There is no question that it is very rare that frivolous lawsuits are brought against doctors.”
So to get back to the original question, “What about all those crazy frivolous lawsuits?”… the answer is, they are very, very rare and our court system is not clogged with them at all. For basic common sense reasons, lawyers do not file frivolous lawsuits very often. The statistics prove this is true. But the myth will probably go on anyway!
Jack Hoyt, Esq.