IN THIS ISSUE:

REPORTING
Presidential Choices for Attorney General?
OBAMA vs McCAIN

BRIEFS
Model Weathers Lawsuit over an Umbrella

Dan Rather Headed for Trial

John Grisham Wins Real-Life Court Battle

Tommy Lee Jones Sues Studio

SIDEBAR
Talking Frivolously about Frivolous Lawsuits

TRANSITIONS
Erin Brockovich

Federal Judge Barefoot Sanders dies at 83

Where Are They Now?
Judge Lance Ito


TRAVEL
When in Rome: Dining Out in The Eternal City

BOOK REVIEWS
Supreme Courtship
by Christopher Buckley


PAST ISSUES
> August 2008

Talking Frivolously about Frivolous Lawsuits

By Steven Sarshik

If you’ve been listening to the political speeches this year, you’ve probably heard more than a few campaigners wail about “frivolous lawsuits.”  Their theory is that if fewer suits were brought against the established order, money would be saved on defense costs, and we would all end up paying less for financial services, insurance coverage, and medical bills.

If only.

As any litigator with real experience knows, there are very few lawsuits which justifiably fit under the label “frivolous,” and there are very few lawsuits brought simply to advance a new legal theory.  Most plaintiff’s attorneys, especially those who work on a contingency basis, are reluctant to take on a new case unless there is a reasonable probability that the case will be successful and that the case will make some money.  So common sense and market forces serve to screen out the most unworthy and “frivolous” claims, even before a complaint is drafted.

Of course, it is not entirely clear exactly what constitutes a “frivolous” lawsuit.  One person’s frivolous suit may be the next person’s landmark case.   Quite a few people believed that George Bush’s request to the United States Supreme Court in the Fall of 2000 to stop the counting of votes in Florida was frivolous.   (And they very well may have been right, no matter what Antonin Scalia had to say)

If you want to find an example of frivolous lawsuit, consider the suit brought last year by a bride who returned from her honeymoon and sued the florist who arranged the floral display at her wedding.  The plaintiff in that case, Elana Glatt, claimed in court papers that the florist substituted pastel pink and green hydrangeas for the dark rust and green hydrangeas she had requested for twenty-two centerpieces.  According to the plaintiff, the florist also provided hydrangeas that were wilted and brown, and arranged in dusty vases without enough water.

Ms. Glatt claimed that the pastel colors used by the florist clashed with the linens, favor boxes and décor at the luxurious New York City restaurant where she and her husband held their reception.  “The use of predominately pastel centerpieces had a significant impact on the look of the room and was entirely inconsistent with the vision the [plaintiff] had bargained for.”  Ms. Glatt claimed that she had paid the florist a cashier’s check in excess of $27,000 before the wedding.

So, what kind of financial compensation do you expect when you bring this type of suit?  Maybe a refund of some of the money paid to the florist.  Well, Ms. Glatt sued in New York State Court for $400,000, more than ten times the amount she had paid.  After the suit was filed, the Wall Street Journal law blog printed news of the suit – and also reported that the plaintiff was working as an associate at Kelley Drye.  There was a strong and immediate response from readers, with most stating that it was absurd to turn a small conflict into a major $400,000 lawsuit.

“Two words:  Tort Reform,” one blogger responded.  “This is why I tell people I’m not a lawyer,” another stated.  A cynical commentator with a sense of humor offered this submission under the name, J. Cochrane:  “If the flowers were rust, the lawsuit’s a bust.”

This particular suit generated a strong public response for two reasons.  First, it was a clear-cut example of someone taking a disappointing if not particularly significant life experience and turning it into a legal battle.  (If your dry cleaner returned a shirt that you intended to wear to a business meeting, and there was a torn collar, would you sue him for a hundred thousand dollars?)

Second, the person filing the suit in court was not some loony pro se litigant, but a commercial lawyer with a big firm.  Shouldn’t she know better?

Political candidates – especially conservative political candidates – believe that they will benefit by talking about frivolous lawsuits.  Last winter, Rudy Giuliani falsely claimed that more than two percent of the nation’s gross domestic product is spent on “frivolous” lawsuits.  Giuliani obviously believed that he would score points with the electorate by complaining about those who filed suits against giant corporations and established institutions.  Of course, this was before his son decided to file suit against Duke University because he was dropped from the golf team.

The plain fact is that frivolous lawsuits are not disrupting the court system.  The chief problem with the court system right now is that we have not discovered a way to handle personal injury lawsuits in a just and expeditious fashion.  Each year thousands upon thousands of personal injury claims are filed in state courts:  construction accidents, slip and fall cases, motor vehicle accidents, medical malpractice claims.  (If a New Yorker walks down the sidewalk after a heavy snowstorm and slips on a patch of frozen snow he can file suit against the property owner claiming that the sidewalk was not shoveled in a safe manner.)  These personal injury suits make up a substantial portion of the cases waiting to be tried in state court.

Unfortunately, no one has figured out a way to resolve these claims quickly.   A number of states passed “No-Fault” legislation about thirty years ago in an attempt to reduce the amount of motor vehicle cases filed.  An individual driving an automobile, or a pedestrian struck by an automobile, can only bring suit if he has sustained a “serious injury.”  Supposedly this eliminates the standard “whiplash” type of case.  Despite passage of these No-Fault laws, there are still a great number of motor vehicle cases filed, and now judges have to spend valuable time making decisions about whether the person filing suit has suffered a “serious injury.”  No good legislative idea goes unpunished.

Most personal injury cases do end up being settled, but not until jury selection.  The reason for this is that there is no financial inducement for early settlement.  The insurance companies that represent most of the defendants prefer to hold on to their money for three or four years – until a jury is selected.  Judges sometimes try to meet with the attorneys during pre-trial discovery, but these settlement conferences are rarely successful.  Insurance adjusters do not offer substantial money because the case is still far from trial.  And Plaintiffs’ attorneys make unreasonably high demands – sometimes two or three times the amount they expect to recover – because they think that the insurance company will not want to make an early settlement, even if they make a reasonable demand. 

If some really bright individual could figure out a way to resolve this mess, it would reduce a lot of the congestion in the court system.  And it would prove much more beneficial than simply growling about frivolous lawsuits.