The popular press and radio talk show hosts frequently mention the words “frivolous law suits”. Nearly all examples of so called frivolous law suits are urban legends.

The story about the fellow picking up his lawn mower to trim his hedges and suing the lawn mower manufacturer for losing his fingers is just one of many urban legends which have never been verified.1

There are many reasons why in fact very few law suits which are filed are ever frivolous, a few of the reasons are the following:

First: All lawyers are ethically required to have a legal and factual basis for filing a law suit. If a lawyer files a law suit which fails to have a factual or legal basis, judges of both state and federal courts can, and will, sanction the attorney and possibly the client. For the lawyer, a punishment of being made to pay the other side’s legal fees and expenses which they incurred as a result of the lawyer filing a frivolous action may be the least of that lawyer’s concerns; in certain instances the lawyer may even be disbarred.

Second: In addition to ethical limitations, Indiana has a law which requires an attorney and the attorney’s client to pay for all the legal fees and expenses of the party who was sued, if the judge determines that the law suit was frivolous.

Third: As a practical matter, the greatest deterrent to frivolous law suits being filed is the contingent attorney fee and costs of litigation.

In civil lawsuits between individuals and businesses, each party’s attorney is paid for by those parties, or in case of nearly all personal injury cases, by the defendant’s insurance company.

As a practical matter, very few individuals and small business have the money to be able to pay an attorney the hourly rate which the attorney has to charge to pay the attorney’s employees, library costs, employee benefits, malpractice insurance, etc. – normally $200.00 per hour or more.

The vast majority of individuals and small businesses who have suffered injuries or damages by the negligence of another party are only able to obtain their day in court by employing an attorney on a contingency fee basis.

A contingent fee is exactly that. The attorney’s fee is contingent on the client’s case being successfully prosecuted at trial. If the client obtains a recovery from the defendant, and if the defendant is solvent, or most usually, insured, the attorney is paid a percentage of that client’s recovery – usually between one third and one half, depending on the costs and expenses of the litigation.

In almost all cases, unless the parties to the law suit had a written contract providing for payment of attorney fees, or unless the dispute involves a matter such as a civil rights violation where by statute the loser is required to pay the winner’s reasonable attorney fees, the person or small business which brings the law suit is required to pay their own attorney fees and costs of litigation out of their recovery made in the law suit.

As a practical matter, this practice results in a very efficient screening of law suits by plaintiffs’ attorneys – they simply will not take the chance of working two or three years on a law suit which is of dubious merit, realizing that if their client’s case is not successful, they will be paid nothing for their time.

Fourth: In addition to most plaintiff’s attorneys working on a contingent fee basis, many plaintiff’s attorneys either pay all of the costs of the litigation, as part of their contingent fee, or agree to advance the costs of the litigation. This is necessary in most cases because the plaintiff normally does not have the money to pay their doctor, if they have been injured, as much as a thousand dollars per hour to testify at trial or by deposition, with respect to their injuries.

It is not unusual for a plaintiff’s attorney, in a medical malpractice case, to expend $50,000.00 for costs of various experts to prove the case.

In a personal injury action, if the plaintiff’s counsel is required to employ an accident reconstructionist, a human factors engineer and the plaintiff’s medical doctor to testify, that attorney will normally spend $30,000.00 to $40,000.00 in putting on the client’s case; if an animation of the crash and other exhibits are utilized to help the jury understand how a crash occurred, where fault is disputed, the plaintiff’s attorney can easily advance or incur costs as high as $75,000.00 in presenting the plaintiff’s case.

In crash worthiness cases and product liability cases against auto manufacturers, a plaintiff’s attorney can not begin to present such a case for less than a half to a million dollars.

As a practical matter, no attorney is going to work a year or more on a client’s case and pay the costs necessary to present the case, unless the attorney believes the case has merit – even then the attorney has no guarantee that the client’s case will be successful or, if successful that the jury’s verdict will be enough to even recover the attorney’s costs.

Before leaving the subject of frivolous lawsuits, two other matters should be borne in mind.

One, plenty is said and heard about frivolous lawsuits. However, frivolous defenses are far more prevalent than are frivolous lawsuits.

As pointed out above, economic reality discourages frivolous lawsuits by a plaintiff. However, when the defendant’s attorney is being paid by the defendant’s insurance company (on an hourly basis) they have no incentive not to deny responsibility and claim, often in the face of all evidence to the contrary, that the defendant is not liable or at fault.

Second, due to the high costs of bringing a lawsuit in a complex case, where the costs of experts and exhibits can exceed several thousands of dollars, many meritorious cases are not brought for the reason that (1) the plaintiff’s damages are not large enough to justify the expense of bringing the case, or (2) the defendant is not insured or lacks adequate insurance.

For example, no one (client or lawyer) is going to pay ten thousand dollars in expert witness costs to prove liability in an auto collision case where the plaintiff suffered a broken arm which fully healed, the plaintiff lost $1,000.00 in wages and paid $7,000.00 in medical expenses and the defendant only has $25,000.00 in insurance coverage. That is not to say that the defendant driver who was driving too fast for the road conditions and crashed into the plaintiff was not responsible for the plaintiff’s damages.

1 Go to http://www.stellaawards.com/bogus.html for a list of some of the other bogus frivolous lawsuit stories that float around on the internet.

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