As an Orlando personal injury attorney, I am often drawn into debates about so-called “frivolous” lawsuits. During Part I of this article, I shared my opinion regarding whether filed lawsuits are often frivolous. Now I want to discuss some little known facts about thousands of cases that never reach the courthouse doors because they are negotiated and settled pre-suit.

If A Frivolous Lawsuit Fell In A Forest & No One Was Listening

Since some cases never lead to the filing of a lawsuit, the rules of procedure prohibiting frivolous lawsuits do not apply.

Settlement Mill Firms Might Recover Regardless Of Case Merit

I cannot speak for larger plaintiffs firms handling a higher volume of cases, and how they might handle claims on a pre-suit basis. However, there is an outstanding article cited front & center on my website written by a Stanford University law professor, based on interviews and disciplinary records (cases) of attorneys working at what she called settlement mill firms. Her article referred to large firms that represent plaintiffs in very high volume fashion. She concluded that those firms often settled their cases pre-suit. She also reported that they would sometimes accept and recover fees on questionable claims just as easily as they did with meritorious claims (for cases with higher value and merit, she concluded those cases were often settled for a lower value than what she called a more “traditional” firm would have accepted). Since those cases were handled entirely pre-suit, the rules of civil procedure (prohibiting frivolous claims or defenses) did not apply. In other words, she concluded that those high volume firms had aligned interests with insurance companies to some extent, in that the firms would accept the cases, often or never file suit (depending on the specific firm) and the insurance company would happily settle for a lower figure so as to avoid suit and larger settlements / verdicts in good cases (because everyone played along with the system with every case). She concluded that little if any case analysis or investigation was performed, so people with questionable claims actually did better than those with legitimate claims, since no one analyzed the cases carefully enough to determine the merit or lack of merit. These were her research findings; I cannot speak to the truth (or lack) of them.

Missing The Target For Real Reform

But tort “reform” efforts have never done anything to address those practices (which I believe are problematic on a number of levels, if her research is true, yet again not addressed by any of these reform efforts). Pre-suit negotiations and settlements happen between private parties (that is, the drivers in auto accidents and their insurance companies & typically a plaintiff’s attorney versus insurance adjuster), away from the prying eyes and control of judges and opposing attorneys because they happen pre-suit. She concluded that insurance companies let those settlements happen, since they could simply opt not to settle and force those attorneys to file suit. She described a system that appeared to be “win/win” because, again, at least according to her research conclusions, the insurance companies received the benefit of settling lawsuits with merit for lower numbers. (Disclaimer: The facts in last two paragraphs above were a summary report of the research findings of this professor & law review article, not based on my own personal knowledge or opinion.)

Truth Versus Maybe Not

In my strong opinion, the only way any law firm of any size would get away with accepting frivolous lawsuits on a regular basis (and stay afloat financially) would be never to file suit on those cases, then settle those cases pre-suit, in volume fashion, because the recovery would be so low per case. Those cases that are filed and / or proceed to trial are not typically frivolous. This includes the infamous McDonald’s “hot coffee” case, which started the whole tort reform movement. This case is often cited as the “evidence” that frivolous cases are everywhere. However, at least based on those news reports that I have heard, and evidence from that case that I have seen with my own eyes, in my personal opinion the reports I’ve read were completely distorted by both the media and large corporations and insurance companies. So restrictions on rights to file certain suits or cap certain types of damages based on allegedly frivolous filed lawsuits, using bogus case examples as evidence of need, are highly concerning.

I Like Eating, So No

Bottom line, the idea that plaintiffs’ attorneys regularly file lawsuits based on frivolous claims, based on my personal observations, is a complete myth that makes no business sense whatsoever for any plaintiffs’ attorneys who might accept those cases. That would be plainly stupid because we would go out of business in a hurry. As I said, I personally swear on everything that matters that I would never accept a case on a contingent basis (or even hourly paid basis) that I believed was frivolous. In fact, for cases in which I will only be paid if I recover, I am never interested unless the case has strong merit against the planned defendant.

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• Disclaimer
  This post is based entirely on personal opinions and impressions based on my experiences as an attorney. However, very importantly, I have not reviewed every factual situation, nor have I been involved in every case ever pursued by any attorney, nor am I familiar with how every or even most law firms operate. So I could well be wrong about any or all of the above. You should never rely upon my opinion unless I accept your case and we enter a representation agreement.

Related Posts:

Do Personal Injury Attorneys Take Frivolous Lawsuits, Part I

Should You Hire A Settlement Mill Firm?

Should You Deal With Your Insurance Company Alone?

Why Are Insurance Companies So Slow?