“Frivolous lawsuits.” Everybody knows that there are too many frivolous lawsuits in this country, right? Everybody knows that our jury system is so broken that hordes of dishonest plaintiffs and their “greedy trial lawyers” file thousands of baseless claims every year, right? Everybody knows that honest doctors are being driven out of the practice of medicine because our system of “jackpot justice” rewards lying patients who pursue ridiculous medical malpractice litigation, right? Right?
Thanks to a decades-long campaign by the opponents of both civil justice and the right to trial by jury, the words “frivolous” and “lawsuit” now are firmly linked together in the American lexicon. The phrase is intentionally used by and on behalf of insurance companies and other powerful special interests groups to lobby state and federal legislatures for so-called “tort reform” litigation. The concept of a “frivolous lawsuit” is this:
- a dishonest, malingering person who doesn’t have a job and is looking to game the system
- hires an unethical “ambulance chasing” lawyer
- to sue an innocent, upstanding citizen with deep pockets (usually a doctor) for millions of dollars,
- making untrue claims about non-existent injuries.
Undoubtedly, so the story continues, the hapless defendant is forced to pay a large settlement (extortion!) because it is too risky to go to trial and put the case in the hands of a jury, who would be sure to give a huge award to the party claiming injury.
According to the narrative, these unwarranted settlements and the astronomical costs of defending meritless litigation make it impossible for doctors to make an honest living. Because of their fear of being sued, doctors must practice “defensive medicine” – ordering unnecessary tests so they can prove they left no stone unturned in case there is ever a bad outcome – thereby driving up the cost of healthcare. The only way to “fix” this broken system is to put an end to these “frivolous lawsuits” by enacting tort reform to cap damages that can be awarded, limit the amount an injured patient is allowed to pay his or her lawyer and further restrict their access to our courts.
This smear campaign has certainly found its mark. Every lawyer who represents injured people must contend with the specter of the “frivolous lawsuit” issue. Juries tend to be skeptical of even the most deserving plaintiff claiming wrongdoing involving the most egregious conduct. There are large segments of the population who automatically tend to assume, without even hearing any facts, that any case involving personal injuries or medical malpractice must be a frivolous or meritless one. It can be difficult to find a group of people willing to keep an open mind to sit on a jury.
Those of us who toil in the trenches, including lawyers on both side of the aisle – those who represent plaintiffs and those who represent defendants – judges who preside over the cases and individuals who have been parties in personal injury or medical malpractice litigation, know that the story of “frivolous lawsuits” is way overblown. The vast majority of cases that are filed and eventually tried to jury verdict involve serious, life-changing injuries and good faith allegations that the conduct involved was inappropriate, unreasonable and wrong. It is so difficult and so expensive to bring a case to court that it is not in anybody’s best interest to pursue a frivolous, or baseless, claim. This is not to say that some questionable and even ill-advised lawsuits are not filed from time to time. But the reality is that a lawyer who files weak or unsubstantiated lawsuits does not stay in business very long. The concept of the “extortion settlement” is a myth, as the insurance companies know that paying even “nuisance” value to resolve weak cases only encourages more of those cases to be filed.
Insurance companies know that, over time, the harder they make it on the parties and their lawyers to successfully resolve cases, the less likely it will be for injured people to seek justice in the court system. Most insurance companies would prefer to pay their lawyers whatever it costs to fight, fight, fight to defend even the most meritorious cases, thereby discouraging future filings. These same companies, and the lawyers who work for them, know that the “frivolous lawsuits” bias is out there, and that it gives them an advantage with juries in court.
While lawyers who try case on behalf of injured people are often accused of abusing our justice system by filing “frivolous lawsuits,” very little attention is paid to the other side of the coin – the insurance companies and their lawyers who raise frivolous defenses. Frivolous defenses are theories with little basis in fact or science that are advanced to defend against solid, good faith allegations of wrongdoing. Sparing no expense, an insurance company financing a frivolous defense knows that they just need one juror to buy their story in order to prevent a (required) unanimous verdict in favor of the injured party. Unfortunately, the frivolous defense can be an effective and successful weapon. The attached article describes several instances in which such defenses have been overcome. 23 Lawyers Share The Most Challenging Medical Lawsuits They Won