As an Orlando personal injury attorney, I sometimes encounter those who wonder whether personal injury attorneys file so-called “frivolous” lawsuits on a regular basis. Someone posed that question to me recently online, so I want to give my answer.
Now Taking An Oath That I Have Never Pursued A Frivolous Lawsuit
Personally, I do solemnly swear that I would never take, and have never taken, any case that I thought was “stupid” or frivolous. We risk all of our time and money on these cases, so why in the world would we take cases that we thought lacked merit? We also have court rules, called the rules of civil procedure, which prohibit frivolous claims. Those rules vary by jurisdiction but many give judges the power to sanction those attorneys and parties who bring frivolous claims and defenses (and give opposing parties the power to file motions requesting those sanctions), which allow judges to impose a variety of punishments including, in some cases, forcing the attorney who brought the claim to pay the attorneys’ fees of the other side. For example, in Florida state courts, one of the more common statutes litigants rely upon for seeking attorney’s fees is Florida Statute § 57.105. The statute provides in part:
(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee 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 the 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 of then-existing law to those material facts.
Federal courts nationwide have a similar rule, Rule 11 of the Federal Rules of Civil Procedure, which requires every attorney to sign every document they file. By signing, they make a representation to the judge and court that:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
If a judge determines that an attorney or litigant has violated Rule 11, these are the potential sanctions:
(4) Nature of Sanctions. . . The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
My Wholehearted Support!
Let me be very clear: I absolutely LOVE and would never want the courts to repeal either of those two statutes!! Although I am strongly opposed to tort deform, I have no problem whatsoever with a statute that defines and specifically prohibits genuinely frivolous lawsuits. In fact, I take comfort in knowing that whenever a defense attorney tries any monkey business with bogus defenses, then I have some statutory avenue for slapping them on the wrist. That’s a good and necessary thing. In fact, this type of statute has existed in all jurisdictions for many years, I’m roughly guessing nearly 100 at least, in one form or another. This was true long before tort “reform” efforts came along, which are uniquely different because they set arbitrary limits unrelated to case merit to take away the constitutional rights of regular people to sue for legitimate claims. I strongly believe that there is an absolute crisis of loss of rights on many fronts in this country. If I stopped practicing tomorrow, and stood not to make another dollar on this effort, I would continue to preach this message from the highest mountain top. In any event, the erosion of our collective rights is concerning and not at all what I learned and believed should happen when I attended law school.
For any case that involves a filed lawsuit, my opinion, which isn’t based on thorough data analysis of every suit ever filed, but rather my observation when practicing law, is that the overwhelming majority of cases are not frivolous. And the few truly frivolous claims are sanctioned by court rules similar to those quoted above, which are not what I personally consider to be problematic tort “reform” statutes.
Now For The Tort “Reforms” We Do Not Need And Should Not Have!
Tort deform efforts typically limit damages, in all types of injury cases, or create arbitrary hurdles to even filing certain lawsuits, which is common in medical malpractice lawsuits. As one of several outrageous examples, in Florida, an adult child over the age of 25 cannot, under any circumstances, recover by far the most valuable category of damages, that is, pain and suffering, for the wrongful death caused by medical malpractice of his or her parent, regardless of whether there are other survivors and regardless of the merits of the claim. That means that if a doctor completely screwed up, meaning he was 1000% wrong and egregiously negligent, and the only survivor was an adult child age 26 or older, then the case from a practical standpoint would not be a good one. In other words, I don’t know any medical malpractice attorneys who would touch such a case in Florida. Ditto for the potential claim of any parent of an adult child over 25 who died due to medical malpractice, again regardless of merit.
Are You The Stubborn Type?
For those who may really not want to believe me for one reason or another, here are the relevant excerpts from the Florida wrongful death statute itself (the absurdly unfair language in bold):
768.21 Damages.–All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence. . . .
Arbitrary Caps On Certain Types Of Damages
Another arbitrary limitation are caps, in Florida medical malpractice cases, on what we call “non-economic damages.” Non-economic damages are hard to quantify, but include things like pain and suffering, mental anguish, loss of companionship, and disfigurement. They are different from “economic” damages, which typically include medical bills, lost wages, and lost future earnings. I dare say that if a doctor negligently cut off one or both of your legs, and you were a desk worker but serious runner, you would not believe that the value of your economic damages was nearly enough.
Do You See The Word Frivolous Anywhere?
Unlike the rules of procedure mentioned above, these laws specifically do not define or even mention the term “frivolous,” then only prevent the filing of those claims, as determined by a judge, which they could easily do. This is just one of many examples of how powerful lobbies across the country, at the state and federal level, have been slowly destroying the access to justice for those with 100% legitimate claims. Again, we already have laws that define and prevent the filing of frivolous claims and defenses, and I wholeheartedly agree with those laws because few things in the law bug me more than frivolous claims or defenses!
What About Pre-Suit Claims That Never Reach The Courthouse?
Those are my thoughts on whether attorneys file frivolous lawsuits. However, there is a completely different world involving pre-suit negotiations and settlements between parties (for cases that may never rise to the level of litigation), and I discuss my thoughts on whether those might be frivolous in Part II of this article.
- Where Can You Hire Me?If you really want an honest opinion of the strengths or weaknesses of your personal injury case, then I hope you will call me today for a free consultation. I would be glad to analyze the specific facts of your case and give you my unbiased opinion. My offices are located in Orlando and Winter Garden, Florida, but I accept cases throughout Florida or Georgia, including Ocoee, Clermont, Lakeland, Dr. Phillips, Altamonte Springs, Apopka, Casselberry, Maitland, Winter Park, Winter Springs, Mount Dora, Tavares, Eustis, Leesburg, Kissimmee, Deland, Deltona, Daytona Beach, Heathrow, Melbourne, Tampa, Miami, Jacksonville, Tallahassee, Valdosta, Macon & Atlanta.
- What Are Personal Injury Claims Anyway?
Personal injury cases may stem from all sorts of accidents, including slip and fall accidents, defective security accidents, car accidents, commercial trucking accidents, 18 wheeler accidents, commercial vehicle accidents, motorcycle accidents, SUV accidents, bicycle accidents, pedestrian accidents, unsafe products, unsafe drugs or medical devices, swimming pool accidents, theme park accidents, cruise ship accidents, or any other accident or injury caused by another person or company.
If you are unsure whether you might have a personal injury case, call me today for a free, no obligation consultation. No Fee if No Recovery, Excludes Costs.
- DisclaimerThese are my personal opinions and impressions based on my experiences as an attorney. 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 firm operates. 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.