Somebody asked me if I thought there are too many frivolous lawsuits today. I, like most people, define a frivolous lawsuit as one whose claims are supported by little or no evidence and so I answered “yes.” Even one frivolous lawsuit is too many and there are probably more than that. To determine exactly how many, we would have to study the facts of each lawsuit filed to determine if it was frivolous because the facts are different in each case. I don’t know that anyone has ever done that.

Some people believe that injury lawsuits are clogging the court system and that some, maybe most of them are frivolous. Actually, far and away the greatest number of cases pending in our court system today are criminal cases (adult and juvenile), followed by civil cases, foreclosure cases, divorce cases, consumer debt cases, landlord-tenant cases and bankruptcy cases. Of those civil cases, less than 10% are injury cases. For example, the 2010 Report of the Clerk of Court for Marion County, Florida indicates that only 7% of the Circuit Civil Court filings were “Negligence” (injury) cases.

Further, there are many protections already in place to discourage the filing of frivolous injuiy lawsuits. First, in the vast majority of injury lawsuits, the injured person has signed a contingent fee agreement with his lawyer. It’s sometimes known as “the poor man’s key to the courthouse.” Each of us has a constitutional right to “access the courts,” but few other than the wealthy can afford to pay a lawyer on an hourly basis to protect their legal rights. So in a contingent fee agreement, the lawyer gets paid a percentage of the recovery and if there is no recovery, the lawyer gets paid nothing. For all lawyers that I know, this has the effect of making the lawyer very carefully evaluate the merits of the case and the likelihood of success before taking the case. After all if a lawyer files a frivolous lawsuit, spends a year or more of his time on the case, advances the costs associated with the case (filing fees, court reporter bills, expert witness fees, etc.) and then recovers nothing, the lawyer is out a lot of time and his own money. Most lawyers are smarter than that.

Second, all or most court systems have a rule or statute in place whereby if the judge determines that the lawsuit is frivolous, after giving the plaintiff and his lawyer an opportunity to prove the case with evidence, the judge can require the plaintiff or his lawyer to pay the other side’s attorney fees and costs incurred while defending the frivolous lawsuit. In Florida, it is Florida Statute 57.105 which states: “Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party OR losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application if then-existing law to those material facts.”

Third, a lawyer can be punished, even disbarred, for filing frivolous lawsuits by the Bar Association of which he is a member.

Some people conclude that a lawsuit is frivolous after hearing only a brief summary, usually one-side, of the facts. We all know from our life experiences that there are two sides to almost every story. A “one-liner” factual summary of a case that takes a day or more to try is seldom complete or accurate. Even a paragraph factual summary of a case in a newspaper is seldom complete or accurate. This may be because the person reciting the “one-liner” summary wants to persuade us one way or the other about the merits of the case or the soundness of the applicable law. It may be because the media preparing the paragraph/article summary doesn’t have the time or the resources to do an in depth summary of the facts pointing out the evidence on both sides of the issue. Also, sometimes the media sensationalizes its stories because “shock value” sells newspapers. We should remember these things before we jump to any conclusions about the merits of a certain case or the civil justice system.

You may have been shocked by the verdict in the McDonald’s coffee case after hearing a “one-liner” or paragraph summary of its facts (I was, too), but I encourage you to Google it (The McDonald’s Coffee Lawsuit – Journal of Consumer and Commercial Law) and look at a more complete summary of the evidence that came out in that case on both sides of the issue. I still believe that the verdict was excessive (the judge did, too, and reduced it), but it will give you a more complete understanding of how and why some of the jurors reached their conclusions even though you or I might have reached a different conclusion.

Also, think about how often you read about an unexpected result in a lawsuit…once a year, once every two years, once every three years? Remember, that across America thousands of lawsuits are decided every business day by judges and juries and 99.9% of the decisions are not reported in the media. The decisions weren’t newsworthy or sensational or unexpected. In other words, the judges and juries in those cases made the expected decision based on the evidence presented and the civil justice system worked.

The abuse of the legal system I see more often than frivolous lawsuits is frivolous defenses. Example: A careless driver runs a stop sign, collides with another car, severely injures the driver and/or passengers in that car, disables their car and the careless driver’s insurance company refuses to settle fairly with the innocent victim. That forces the innocent victim to hire a lawyer to pursue the claim. That forces the innocent victim to file a lawsuit. The insurance company for the careless driver hires a lawyer to defend him. In his court filings, the defendant/careless driver denies that he was careless or negligent and denies that the innocent victim was injured in that collision. After months, sometimes years of litigation, the case is settled or tried and justice is usually done…justice that should have been done by the honest acceptance of personal and legal responsibility by the careless driver at the outset without any litigation or lawsuit. This happens quite often in any number of different factual situations other than motor vehicle collisions. Some insurance companies just won’t do the right thing until they are forced to. These “frivolous defense” cases take up time and space in the court system and drive insurance premiums up. The solution to this problem is more responsible and sound claims decisions by insurance and legal professionals early in the process.

I have practiced law in the Florida court system for over 40 years. I have represented defendants and their insurance companies and I have represented injured people. It is my belief that, although not perfect, we still have the best system of justice in the world. So next time someone says something to you to try and shake your confidence in the American system of justice, I would encourage you to think twice before jumping to any conclusions. In other words, don’t throw the baby out with the bath water. And remember that if you are ever the victim of a violent crime or you are severely injured by a careless driver, person or corporation, the American system of justice will always be there for you and you can access it even though you are not wealthy. We have some very special rights here in America not enjoyed by citizens of other countries and they are summed up in the last six words of The Pledge of Allegiance to our flag.