FRIVOLOUS LAWSUITS MUST BE CURTAILED BEFORE WE CAN MAKE PROGRESS ON OTHER ISSUES

The American Panthers' Proposal for the Reduction of Civil Litigation

We seem to be stuck between a rock and a hard place on this issue. On the one hand, the current explosion of frivolous civil lawsuits must be curtailed before it does even more harm to our economy. The problem is so serious that, for example, it my not be possible to offer Americans affordable health care if we cannot control medical malpractice lawsuits. On the other hand, we must not stifle legitimate lawsuits, or the size of legitimate awards. George Bush’s proposal to limit the size of medical malpractice awards is a gift to his wealthy supporters, and works against ordinary people who are entitled to fair protection against malpractice.

The answer is to make sure that there is a penalty for filing frivolous or overpriced lawsuits. Here’s how it would work:

Any time a civil lawsuit is filed, there should be a mandatory and automatic counter suit by the defendant. The counter suit would be for compensation for the anguish and expense associated with defending a frivolous suit or a suit that, while not frivolous in itself, demands a preposterous level of compensation compared to the amount of harm alleged.

While anyone who is sued is allowed to file a counter suit, it is not always done, and it has a cost. Even worse, under current practice, no award is given for a counter suit against a frivolous lawsuit unless that lawsuit is preposterous in the extreme. The burden of proof, in practice, is heavily on the counter-suitor. This state of affairs is strongly supported by the American Bar Association and it’s not hard to figure out why. Lawsuits keep lawyers busy and wealthy, and the ABA does not want anything to happen that might change the status quo.

The ABA argument is that fear of a counter suit will discourage people from seeking legitimate redress. hey give no consideration to the fact that the person or business that is subjected to this lawsuit also has rights. The ABA also does not consider that all of these unnecessary lawsuits tie up the courts and make it more difficult for anybody to get justice. And they also do not care that innocent people are willing to pay something to settle a case just to avoid the risk, legal fees, and distraction from profitable endeavors.

With the counter suit automatic, and given equal consideration and an equal burden of proof, any potential plaintiff will have to examine the justification for his complaint very carefully, just to be sure that the whole thing doesn’t backfire.

The Defendant would have no obligation with regard to his counter suit. He would not have to specifically defend it, or even acknowledge it. It would cost him nothing in time or money to have the counter suit automatically created.

The judge or jury, on the other hand, should be obligated to make a decision on both the original suit and the counter suit. They should be obligated to do so whether or not the defendant offers evidence on behalf of his own counter suit. The judge or jury may use whatever information comes to them from the prosecution and defense of the original suit to aid them in making a decision on the counter suit. The decision must be two fold; whether the original suit is frivolous and whether the demand for compensation is exorbitant.

In the case of a Class Action Suit, the defendant against the counter suit would be the Plaintiff’s attorney. If the litigation is settled out of court, then it can be presumed that the original suit and the counter suit are both settled.

A plaintiff can avoid liability for that part of the counter suit that claims that the amount of compensation demanded was preposterous by not asking for a specific dollar amount. Terms like “…whatever the court deems just and proper.” or “…whatever compensation and penalties the court may deem just and proper” may be used instead of demanding a specific dollar amount. This should not preclude Plaintiff from showing expenses that were incurred due to the defendant’s alleged negligence, but plaintiff cannot say, or imply, a specific compensation demand and still be protected. In any event, such defensive action by a plaintiff does not give him immunity from that part of the counter suit that alleges that the entire original suit was frivolous.

If the law is changed so that any lawsuit generates an automatic counter suit, there will instantly and dramatically be a reduction in frivolous litigation without abridging the rights of any honest litigant. It’s about time that our government changed the law to make this happen.

LHS