This weekend, a woman asked me why there so many more frivolous lawsuits filed now than "in the old days". I told her that I couldn't address her question and needed more information. What are the then/now statistics? Where did she get them? What type or types of lawsuits was she describing? She didn't know the answer to any of them. It was just a sense that she had gathered from things she saw online, daytime tv and talk radio and – yes – a neighbor who had been sued after running a stop sign and hitting another car. She said that she thought that the lawsuit against her neighbor was a frivolous because "the other driver wouldn't settle out of court".
How much did the other driver demand to settle the case? How much did her friend's insurance carrier offer in reply? Was the other driver hurt? How bad was the damage to the other car? Did you ever consider that perhaps your friend's insurance carrier did not offer the other driver enough to make him whole? Again, she had no answers.
A frivolous lawsuit is one that has no supporting legal argument or factual basis. In short, it is a lawsuit that is designed to get money without any justification, cast the party being sued in a bad light or to harass the other party. It also might be a situation where a lawyer doesn't properly assess the claim before filing the lawsuit. Where it is clear that one party's lack of care caused another party's injury, but they can't agree on the value of the claim, it is NOT a frivolous lawsuit.
The insurance industry has done a good job of getting people to think that a claim that is not worth a lot of money is a frivolous one. I routinely ask potential jurors if they believe that they have been the victim of a frivolous lawsuit or know anyone who has. For the overwhelming number of jurors, the answer is no. For those who answer yes, the responses are across the board – some folks describe truly frivolous lawsuits and some describe what the woman above described to me. One man told me that he knew that he was the victim of a frivolous lawsuit because the jury gave the plaintiff less than his insurance carrier had offered to settle the lawsuit.
The next time that you hear someone start talking what they deem to be a frivolous lawsuit, politely ask some of the questions raised in this post. You both might be surprised at what you learn.
Cum Laude graduate of Cumberland School of Law, Pet Mackey is a civil trial litigation expert who represents plaintiffs in business and consumer tort, contracts and construction, employment disputes and insurance. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy, a Certified Alabama Mediator, and an “AV” rated lawyer by Martindale-Hubbell.