• What is a Frivolous Lawsuit?
  • August 3, 2016
  • Law Firm: McCready Garcia Leet P.C. - Chicago Office
  • What is a “frivolous” lawsuit”

    We are bombarded with news reports of frivolous lawsuits in this country, but rarely does anyone discuss what is a “frivolous” lawsuit. A lawsuit involves one party against the other. A frivolous lawsuit is one which, that due to lack of legal merit, has no chance of succeeding. In most cases, when someone is sued, the person being sued feels that the lawsuit is frivolous. So, what is considered frivolous often depends on one’s point of view. If you are injured by a defective product or by a negligent doctor, the company or physician may feel your case is frivolous, but is it frivolous to the injured person? So where do frivolous lawsuits come from?

    Don’t lawyers have an incentive to file frivolous cases?

    Many people believe that lawyers benefit by filing frivolous lawsuits. However, lawyers who represent injured people do not get paid unless they make a recovery. Therefore, injury lawyers must be selective in the cases they take since they do not get paid unless they recover. Lawyers cannot afford to take cases which they do not believe they have a chance of winning. Only if the lawyer wins is the attorney paid, from a percentage of what is won.

    Lawyers who represent injured people also pay the costs of the case. A lawyer will invest his or her own money to pursue a case. For small cases, this may amount to a few hundred dollars, but in complex medical malpractice cases, the expenses of pursuing a case can exceed $100,000. Personal injury lawyers pay for these expenses and only get reimbursed if they make a recovery. If a case is lost, not only will the lawyer lose all the time they invested in the case, but they will also lose their own money advanced for the case.
    Lawyers are like any small business, they must handle matters which will be profitable or they will go out of business. Like all small businesses, they cannot afford to take many financial risks. Simply put, business dictates that lawyers cannot pursue frivolous lawsuits.

    Don’t insurance companies settle frivolous lawsuits because they cost too much defend?

    The truth is just the opposite: insurance companies do not settle frivolous lawsuits. Duke University Law Professor Neil Vidmar found in his research: “In interviews with liability insurers that I undertook in North Carolina and other states, the most consistent theme from them was: ‘We do not settle frivolous cases.’ The insurers indicated that there are minor exceptions, but their policy on frivolous cases was based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation.” Insurance companies have vast resources to fight frivolous lawsuits and have every incentive to fight cases they feel are frivolous.

    Most cases settle before going to trial. In fact, almost 98% of cases settle before being decided by a jury. A settlement requires both sides to recognize the risk of losing if a case proceeds to trial. If insurance companies do not settle frivolous cases, it means that a case which settles has legal merit.

    The role of courts in frivolous cases

    Judges serve as the gatekeepers to our legal system. Judges have the ability to throw frivolous lawsuits out of court. Judges also have the ability to sanction lawyers who bring frivolous cases. You may read about a frivolous lawsuit being filed but rarely do you hear what actually happens to the case. The news likes to focus on lawsuits which are filed which sound outrageous because that is what people want to hear about.

    While it is easy to file a lawsuit, it is not easy to prevail. In order to recover for personal injuries, you must prove someone is at fault and caused your injuries. This is not always clear and oftentimes it requires the court process to discover the truth. The legal system is a search for the truth. Simply because someone does not win their case does mean that it was frivolous. Judges only allow cases to be decided by a jury when reasonable people may disagree on the result. This is the foundation of our jury system. If a case has no merit or is frivolous, the judge will dismiss it before a jury even gets a chance to listen to the evidence.

    How do lawsuits make society safer?

    The threat of being sued greatly contributes to a safer world. It provides an economic deterrent against unsafe conduct. Lawsuits have made countless products safer, from cars to baby cribs to medication. Lawsuits and the threat of being held accountable influence corporate conduct. The quality and safety of almost all products has improved over the years in large measure due to lawyers. A little known statistic is that injury cases account for only six percent of lawsuits filed each year. Of course, insurance companies who pay when people are injured have an incentive to reduce the amount they have to pay. It is often insurance companies who help publicize frivolous lawsuits.