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| Scott R. Marshall

Caller: Hello, Mr. Attorney? I slipped and fell!

Attorney: Where?

Caller: At the grocery store. I want to sue them!

Attorney: What did you slip on?

Caller: I have no idea.

Attorney: Sounds like a case to me!

Caller: What do we need to do?

Attorney: Well, you don’t need to do anything. I will advance all of your costs! I will spend several hundred dollars on your medical records. I will spend valuable staff time having my assistant put those records together. I will hire an investigator to take pictures of the place you fell. I will pay an expert $5,000 to review everything and write a report. I will spend hundreds of hours of my time litigating your case. Then I will spend over $30,000 taking your case to trial. If I lose, you do not have to pay me and you do not have to reimburse me for the money I spent!

Caller: Hot Diggity Dog!

So what is wrong with this picture? Depending on what you do for a living and/or where your political affiliations lie, my guess is that you will have one of two very different reactions: either you will laugh because you believe that such a scenario is absurd, or you will scoff in disgust because you believe that this is exactly what happens when people call a lawyer after being injured.

In 2011, President Obama, as did President Bush before him, lamented the problem that frivolous lawsuits are causing our nation. There is a perception among politicians and pundits that "frivolous lawsuits" brought by personal injury lawyers, are costing us all lots of money. It must be true! Well, is it? Let’s dust off those critical thinking skills that the politicians and pundits don’t like us to use, and think for ourselves for a change. I know: questioning what we are being told by people in authority is out of fashion. We are supposed to “toe the party line.” Let's rock the boat!

First, let’s define “frivolous.” Merriam-Webster defines frivolous in this context as: having no sound basis in law or fact. Interestingly, the dictionary even uses the example: “a frivolous lawsuit.” Wow. This phrase has become so commonplace that it is used as the example in the dictionary. Think there might by a little bias against “frivolous lawsuits” in this country? Holy cow. But I digress.

So, when you say a lawsuit is “frivolous,” you are saying that it is a lawsuit without sound basis in law or fact. Can we agree on that? If not, you have no hope of ever using your critical thinking skills again; you should stay home and cease to vote.

Now that we have a definition, let’s take it one step further. When you say we need to stop “frivolous lawsuits,” you are saying that we should put an end to all lawsuits that have no sound basis in law or fact. Can we agree on that? If not, well, I really don't know how to respond to that. You are beyond the help of western medicine.

So, now we have defined what a “frivolous lawsuit” is, and we have agreed that we need to stop them. How do we do that? Here are some options:

  1. Get rid of lawsuits all together. No more lawyers. No more lawsuits. We can just all work it out at the OK Corral. Sound like a good idea? Well, if I run over you in my car while you are in a crosswalk, that is fine by me, because then I don’t have to pay you for your injuries. Then you come to my house with Luca Brasi and make me an offer I can’t refuse. OK, so maybe that is not such a good idea. We need lawsuits.
  2. Let’s restrict the amount of money you can recover from a lawsuit. If we limit the amount of money you can get from a lawsuit, will that stop frivolous lawsuits? Well, engage those critical thinking skills again. We are worried about lawsuits that have no sound basis in fact or law. That has nothing to do with the amount of money a jury will allow for the harms and losses you suffered. So, how will that prevent frivolous lawsuits? What will happen to those cases that are NOT frivolous?
  3. Let’s limit lawyers’ fees! If lawyers don’t get paid as much, then they won’t file those frivolous lawsuits. But wait a minute. If they only get paid when they win, then they won’t get paid anyway if a lawsuit is frivolous. Will they? So how does this help? Forgetting about your constitutional right to contract, this also affects lawsuits that are NOT frivolous.
  4. Let’s enact rules and laws that penalize plaintiffs and their lawyers for filing frivolous lawsuits in the first place! Hey! Now, we might be on to something. If you do that, then you can create a way to prevent “frivolous lawsuits” from going forward. How about if we enact rules or laws that give the JUDGE – not the jury – the power to evaluate the evidence ahead of trial to make sure that the claims made in the lawsuit have a “sound basis in law or fact?” In this way, the Defendant can file a motion with the judge at any time and accuse the Plaintiff of filing a frivolous lawsuit. If the Judge finds that the lawsuit has “no sound basis in law or fact,” the judge can dismiss the lawsuit and order the Plaintiff to pay all of the Defendant’s attorneys’ fees and costs associated with the lawsuit.

OK. I can’t think of any other options. No lawsuits. Limit damages. Limit lawyer fees. Give defendants a way to ask the judge to dismiss the “frivolous lawsuit” and make the Plaintiff pay.

Now, before we take any steps, let’s look at the downside to each of these options.

  1. OK. Luca Brasi. Enough said about that one. We need lawsuits.
  2. Restricting the amount of money you can recover. This is also known as a “cap on damages.” This doesn’t really get to the heart of the problem. It penalizes people who have valid claims by reducing an otherwise fair jury verdict arbitrarily, and it restricts your constitutional right to full and fair compensation for your harms and losses as determined by a jury of your peers.
  3. Restricting the amount of money a lawyer gets paid. Again, misses the point and affects much more than just “frivolous lawsuits.” Also, it too restricts your constitutional rights: this time your freedom to contract. The Defendant has no restriction on their right to contract and hire a lawyer, why should you?
  4. Letting the Defendant ask the judge to dismiss the lawsuit and make the Plaintiff pay if the judge finds the lawsuit to have no sound basis in fact or law……uh…..downside? Anyone? Bueller? Bueller?

OK, now. This is a blog and I accept comments (below). Let me have it. Is there anyone (not including those that have completely forgotten how to use their critical thinking skills), who thinks that anything other than number 4 is the best option? I seriously can’t think of a downside. It does NOT punish innocent people (as do 2&3). It does not involve broken knee caps (as does 1). It has no real downside. Sure, you can blame it on the judge, but most judges I have been in front of have no patience for poor lawyering, let alone frivolous lawsuits.

So, why don’t we have number 4? Actually, we do. In almost every state, there are laws and rules of procedure that prevent claims lacking sound basis in law or fact from getting to a jury. In Florida (where I practice), for example, F.S. 57.105 prohibits frivolous lawsuits in this way: if a Defendant feels that a lawsuit is frivolous, that defendant can file a Motion for Sanctions under F.S. 57.105. The Plaintiff then has 21 days to dismiss the claim. If the Plaintiff does not dismiss the claim, the judge (not the jury) will hear argument on the motion, evaluate the facts, and if the judge determines that the claim was frivolous (having no sound basis in law or fact), the Plaintiff has to pay the Defendant’s attorneys’ fees and costs, and the case is dismissed with prejudice. Furthermore, the actions of the Plaintiff’s attorney in maintaining the frivolous lawsuit may be referred to The Florida Bar for an ethical investigation, which could result in the lawyer being suspended or disbarred. What better way to prevent "frivolous lawsuits" than that?

One last point about frivolous lawsuits in personal injury, medical malpractice and similar “tort” claims that everyone seems to overlook: 99.9% of Plaintiffs’ attorneys accept these cases on a “contingent fee” basis, which means what? They only get paid IF they win. So, given what you now know about about F.S. 57.105 and other similar deterrents to “frivolous lawsuits,” do you really, honestly believe that a lawyer is going to knowingly, intentionally file a lawsuit that has no sound basis in law or fact when they won’t get paid and could be subject to discipline by the Bar? How much business sense does that make? Do you think “greedy” trial lawyers are going to do something that is going to cost them money, not make them money, and may potentially cost them their license to practice law. Really?

Wake up! If you have bought into the idea that “frivolous" lawsuits are a problem in this country, then you have been hornswoggled into cheering, if not demanding, your state and federal legislatures limit your constitutional right to seek redress for your injuries in front of a jury of your peers. This is "tort reform." Limitations on your ability to bring a "tort" claim for your injuries, harms and losses. Let me ask you this: who do you think would benefit from such a limitation? The citizens of this great nation? How? The only beneficiaries of “tort reform” that limits YOUR constitutional rights are insurance companies and large self-insured corporations. NOT YOU, NOT SMALL BUSINESSES. Have your insurance premiums EVER gone down? Nope. Nor will they, no matter how many constitutional rights you give up. If frivolous lawsuits are costing so much money and are so bad for businesses, then how come Corporate CEO compensation today is in the tens (if not hundreds) of millions of dollars annually?

As long as the Defendant doesn’t hire some knucklehead defense attorney who doesn’t know what they are doing, frivolous lawsuits NEVER make it to trial in front of a jury. Which is why they are actually very rare, ESPECIALLY in cases where the Plaintiff’s lawyer only gets paid when he wins. The only people who will gain from “tort reform” are the ones making millions of dollars a year already, NOT YOU.

So, thank you for exercising that muscle between your ears (I know it’s not a muscle). If you followed the exercise carefully and objectively (without the bias found in Merriam-Webster and on Capitol Hill), then I hope you can see that, ironically, any argument that frivolous lawsuits are a problem in this country is itself, in fact, frivolous, and the only thing more rare than a frivolous lawsuit is a pink elephant doing a pirouette in Time Square.


  1. Gravatar for Foundation for Critical Thinking
    Foundation for Critical Thinking

    Thanks for the interesting article… very intersting use of critical thinking, as applied to current events. We’ve shared the link in the news archives of our website!

    If you’re interested in “Critical Thinking”, please learn more about the Foundation for Critical Thinking – one of the oldest critical thinking organizations in the world, at: WWW.CRITICALTHINKING.ORG.

    Or join the discussion on the FCT Facebook page at:

  2. Gravatar for Penny

    Dear sir,

    What if I represent someone with no money who wants to sue you.

    I will be careful to leave enough doubt that I won't have to worry about disbarment.

    Right now, to defend yourself, you have to pay the money up front. And you will have to keep paying and paying and who knows, maybe we do win.

    Let me say this very carefully so making an accusation of extortion would be hard to prove.

    I'm not saying it isn't extortion.

    Let's call it an offer.

    (Hey, Lou Brasi, maybe there is a career as a defense lawyer for you.)

    Now, I'll settle for a lot less money and we don't go to court.

    Frivolous lawsuits are not that bad, but the system is still far from fair.

    If there is any hint of justification sanctions are easy to avoid. Truth and fairness aren't the issues, it's who has money and who doesn't.

    The first question a lawyer asks isn't what the law is, or what is just.

    It's a business and the first question is "Can we make money?"

    I give you, frivolous isn't as bad as common knowledge makes it, but the courts aren't as rosey as you paint them.

    Remember the most important thing a lawyer has to know:

    "Who do I bill this hour to?"

  3. Gravatar for Scott Marshall
    Scott Marshall

    Penny, thank you for your comment. I agree with you that if you are a clever lawyer, you can craft an argument and allege facts to make a case which might escape sanctions. When that happens, it often happens in cases where businesses sue businesses and lawyers are paid by the hour. That, however, is not the type of lawsuit that our government and pundits refer to when they use the term "frivolous lawsuit."

    When they talk about "frivolous lawsuits," they are specifically talking about personal injury, medical malpractice and the like, which are ALL contingency fee cases where the lawyers do NOT "bill by the hour" as you put it. As you also point out, lawyers are in the business of making money (I assume you are too). So, contingency fee cases are the cases LEAST likely to be frivolous for that exact reason. I'm not going to take a contingent fee case because I can craft a clever argument. I want to win and get paid. So, if you come to me with a bad case (not a frivolous one, but one that simply has what I consider to be a small chance of winning), I am not going to represent you.

    Ironically, for almost all OTHER types of lawsuits that are NOT targeted by "tort reform," the opposite is true and your points are right on. Unfortunately, no one is talking about placing limits on those. Why not? Because this is not about "frivolous lawsuits." It is about saving insurance companies money. They are using very effective propaganda to scare the public into supporting "tort reform."

    The main point I am trying to make is that there are already mechanisms in place to prevent "frivolous lawsuits" as best we can. The only other solution that is being put forth is to limit lawsuits ACROSS THE BOARD. This would be grossly unfair to the vast majority of people who are injured and bring very valid lawsuits for damages.

    Again, thank you for your comment!

  4. Gravatar for Tim Svenson
    Tim Svenson

    Headlines to the contrary. Guy sues Maimi Heat for not playing the starting five. Chicago man sues Derrick Rose for his own obesity, since he has become depressed since Mr. Rose isn't playing. And that's just basketball stories from the last few months.

    I think the real issue for many lay-people is they don't agree with even legally meritorious claims. Slip and falls are a perfect example. Most people figure that if you are wearing heels in the snow and you fall, that's really your problem, not the problem of the parking lot operator or the snow removal contractor. In many cases, our legal system disagrees.

    I have no doubt that you, as a plaintiff's attorney, will rend garments and say, "but wait, Mr. Svenson, are you saying that you want dangerous parking lots?!?" Of course not, but for laypeople, they don't generally agree with you that others should be responsible for the coordination (or lack thereof) of your plaintiffs.

    It's not frivolous, it's just a disagreement on who is responsible. And for many in this country, personal responsibility seems to have gone out the window.

    Thus, naturally, we should sue the window manufacturer.

  5. Gravatar for Scott Marshall
    Scott Marshall

    Mr. Svenson, I actually completely agree with you. If you are wearing heels in the snow and you slip and fall, my best legal advice to you would be: don't wear heels in the snow. I would never take that case (then again, I live in Florida, so that issue never comes up).

    Keep in mind, at the end of every lawsuit lies a jury of Americans who get to decide that issue of personal responsibility. In fact, statistics show that nearly 1 out of 2 jurors think that I am a scumbag trial attorney before I even open my mouth. How about that as a deterrent to questionable lawsuits!

    Your point regarding it being about disagreement is right on the money. If the citizens of this country want a debate about what should or should not be a "legally meritorious" claim, then by all means, let's have the debate. The simple point I am trying to make is that people are being told something that is untrue. As you point out, it's not frivolous, but that is what it is being called because it makes good press and makes trial lawyers look greedy and evil, which is exactly what the people using that term want, and their solution is to throw the baby out with the bath water. It has been very effective propaganda.

    Thanks for your comment!

  6. Gravatar for Jessica Hoerman
    Jessica Hoerman

    Great article, Scott. I will share.

    I would like to point out that the cases that Tim Svenson pointed out in his comment actually prove your point. Its too early on the Derrick Rose case, as it was just filed in Peoria County in April, but, in all likelihood it will not go anywhere. The lawsuit seeking damages from the San Antonio spur's decision to strategically rest players was pulled by the very lawyer that filed it (apparently an angry fan, and I believe there were many of these from this decision). The system worked!

    But, if either the Spurs or Derrick Rose spends a dime defending these lawsuits and the court finds there was no sound basis for filing these cases, than I vote for going to "option 4" - let the court decide to charge the lawyers responsible for filing these cases with defense costs. Lesson learned.

  7. Gravatar for Scott Marshall
    Scott Marshall

    Thanks Jessica! Great point about the NBA cases! So true that those cases are evidence of the system in fact working to prevent "frivolous lawsuits." What is that my Granddaddy used to say? "If it ain't broke, don't fix it." Seems like the system is working just fine, but people seeking to increase corporate profits are certainly trying to "fix it" anyway.

    Thanks again!

  8. Gravatar for John Cumming
    John Cumming

    At the risk of being accused of not using my brain cells, I asked by attorney on numerous occasions to ask the Judge to have a hearing on frivolous nature of the case being brought against me. Nothing happened! Later, in mediation I was forced to give up any chance of recovery and to protect myself and my wife, from a million dollar claim (which I can't ignore).

    What injury did the plaintiff claim I cause him? A loss of 15K, but he already owned me over 30K. So in effect even if his claim had standing, he would then have only owed me 15K.

    Oh yes, did I mention the plaintiff's lawyer got a 15K settlement from my first attorney's law firm to settle the case. What did my first attorney do wrong....NOTHING! So why did we agree to the settlement....because the plaintiff HAD NO MONEY...Bankrupt, so there is no point in continuing because even if I won, I could not get any money out of him.

    You write a good line, but like all lawyers you seem out of touch with the real world.

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