There Oughta Be a Law (And There Is)

A couple of weeks ago I had a post about who you can't sue.  It was more about tort immunity, but the comments to the post also dealt with people complaining about frivolous lawsuits.

This can be a maddening topic for me.  Some people, despite all evidence to the contrary, believe that our court system is filled with people making money off of bogus lawsuits.   I know I can't convince people that there aren't hoards of frivolous lawsuits.  But that won't stop me from making two points.

1. The thing I hear the most is that there should be a law that penalizes you if you file a frivolous lawsuit.  Guess what, there is.  A Judge can sanction an attorney, a plaintiff, make them pay defense costs, order damages and in an extreme circumstance, an attorney could lose their license.  Now of course defendants win cases all of the time and often as lawyers we find out that the facts aren't what we thought they were.  But that doesn't make the lawsuits frivolous.  And if they are frivolous there is a law in place to punish them.

2. The biggest bogus complaint is that doctors are being run out of town by frivolous lawsuits.  Again, I'm not saying there has never been a b.s. malpractice lawsuit.   But if you ever want to conduct a social experiment, Google Chicago medical malpractice lawyers and call the first 20 law firms you see that do malpractice cases in Chicago.  Present to them over the phone a situation you think is frivolous and see if they even ask you to come in for a meeting.  I'll bet all 20 won't waste their time.  Most will tell you that they reject 19 out of 20 cases for med mal that come to them.  A typical malpractice case costs an attorney $100,000 in expenses.  Doctors win 80% of the time in Cook County.  So unless a firm is willing to go banrupt, they can't file frivolous lawsuits. 

Ok, I'm ready for the backlash.  Bring it on, but if you say there are frivolous lawsuits, please explain how they were frivolous.  Telling me that you won the case as a defendant or that your relative was sued for something they felt was bogus doesn't make it frivolous.


Legal Tip Of The Day from Chicago attorney Kevin Dixler on immigration: If you become a conditional or lawful permanent resident, then treat the U.S. as your permanent home. If you stay outside the U.S. for 180 days, ignore filing tax returns, or otherwise ignore civil immigration laws, you can lose your green card.


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  • As I often pointed out in the late but moribund Chicago Bar-Tender, many of the complaints were factually improbable or nonsensical, but since one must assume the truth of the allegations for the purpose of a motion to dismiss, not frivolous in the legal sense.

    With regard to medical malpractice, sure the lawyers are screening the cases, because they will need medical affidavits before they can go past square one in court. I had to explain to someone who is convinced that all doctors and nursing homes commit malpractice that except in the case of express contract ("the hairy hand case"), you have to prove negligence with the testimony of doctors, and a perfect result is not guaranteed. Even proof of the express contract is now more onerous. However, she thinks she is her own doctor and lawyer, even though she never went to med or law school (at least I did the latter).

    The picture and caption, however, bring me to another point. When I was reviewing legal software for a major legal publisher, one attorney submitted a "venue finder." However, the software consistently spit out "Alabama," even though the tester input answers to questions that in no way showed that Alabama had any contact with the case. This was before the BMW punitive damages case, and the reason, in retrospect, obviously was that Alabama courts upheld large damage awards. So, lawyers are not above suggesting what the cartoon implies.

  • Thanks for the post. How can you shop for a different venue on medical malpractice?

  • In reply to mtaylor:

    To get to the venue point (and as I alluded in my post about the bogus software), venue is basically only where the plaintiff lives, the defendant resides, or the accident occurred. Also, you have to get personal jurisdiction over the defendant, which eliminates the "where the plaintiff lives."

    With suits against corporations, it probably is easier, since large corporations have some sort of agent or presence all over the country, although, in a case against World Wide Volkswagen, the Supreme Court imposed some due process limits in this regard. However, with individuals, either the accident must occur there, or you have to find the individual to obtain personal jurisdiction. Even if a malpractice case is brought against a hospital, the hospital is generally in one place, unless it is part of a huge company (and if it is a subsidiary, that doesn't do you much good).

  • You certainly can't change states on medmal lawsuits. You can try to file in a favorable county if part of the case actually took place there. But often a lawyer will file a case in Chicago only to see it quickly transferred to a suburban county where the alleged malpractice happened. Venue shopping is more common in things like drug liability lawsuits.

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