Frivolous Lawsuits? What about Frivolous Defenses?

For nearly two decades, there has been a concerted effort by many in corporate America (and particularly in the insurance and pharmaceutical industries), with the help of the political right, to convince the public that “frivolous lawsuits” filed by “trial lawyers” are a pandemic.  Those trumpeting this charge want the public to believe that the vast majority of personal injury lawsuits are “frivolous” and that these “frivolous lawsuits” are responsible for many of the woes that we face in this country, including high insurance rates, sky-rocketing medical costs, and a civil justice system that is out of control and has run amuck.  These frivolous trumpeters contend that “frivolous lawsuits” are the cause of high automobile insurance, high medical insurance, and high malpractice insurance for doctors and other professionals.  Armed with little more than a few catchy slogans and buzzwords, the frivolous trumpeters have been amazingly successful in deceiving the general public.

The famous McDonald’s hot coffee case (now nearly 20 years old) is perhaps the poster-child for the frivolous lawsuit trumpeters.  Just as they have peddled their snake oil by erroneously contending that a pandemic of frivolous lawsuits has resulted in increased insurance and medical costs (an argument with no direct factual support, only antidotal evidence), the frivolous trumpeters have distorted the McDonald’s hot coffee case in order to change the civil justice system to the detriment of ordinary citizens.  Fortunately, the movie “HOT COFFEE” exposes the propaganda campaign of the frivolous trumpeters for the last 20 years.  The movie is very well done.   In addition to showing the public the true facts in the McDonald’s hot coffee case, it also documents the manipulation and attempted hi-jacking of our civil tort system by the frivolous trumpeters.

In my experience of over 25 years of handling personal injury cases (on both sides; plaintiff and defense), I can honestly say that I have seen many more frivolous defenses than frivolous lawsuits.  And yes, I understand that the last sentence is only antidotal evidence.  However, I challenge anyone to prove otherwise.  Indeed, our current legal system actually encourages frivolous defenses (while discouraging frivolous lawsuits).  The reason is simple.  Defense attorneys get paid by the hour (no matter what the result) and plaintiff attorneys get paid on a contingent fee (i.e. they only get paid a portion of the plaintiff’s recovery and ONLY IF there is a recovery).  If there is no recovery then there is no fee.  What attorney in their right mind would take, much less pursue, a frivolous lawsuit?  There is simply no incentive to do so.  To the contrary, pursuing frivolous lawsuits is the fast track to bankruptcy for any personal injury lawyer.  As if the financial disincentive of never getting paid is not enough, the federal courts, and virtually every state, have penalties for asserting frivolous lawsuits.

The defense lawyer, on the other hand, has an incentive to defend any and all cases (whether or not there are any meritorious defenses), because they get paid by the hour.  The longer the case, the more the defense lawyer gets paid, regardless of the outcome.   In cases where the liability and the resulting injuries are crystal clear, the most common defense tactic (routinely employed by the vast majority of insurance carriers) is to attempt to beat up on and malign the plaintiff and attack him or her personally.  This leads to being victimized twice; first when they are injured in an accident (caused by a negligent defendant) and then again by the defendant’s lawyer.  Instead of being dealt with honestly and fairly, and their claims assessed based on the merits, Plaintiffs are personally attacked simply for accessing the civil tort system that was designed to protect their individual rights.

Click this link and watch HOT COFFEE.  You won’t be disappointed.