Myth: Most Lawsuits Are Frivolous

Michael GrossmanSeptember 03, 2013 4 minutes

It's not exactly news that some people don't like lawyers. Actually, depending on whom you ask, lots of people don't like lawyers. One of the biggest reasons for that is the perception that many lawyers make money not by pursuing honest claims against those who've done wrong, but by waging endless frivolous lawsuits for personal gain. While it is certainly true that some lawyers do engage in this practice (before inevitably getting their butts tossed out of the court room, I'd like to add), the simple fact is that the belief that such practices are commonplace reflects little more than a widespread stereotype about lawyers. The notion that all--or even most--lawyers file frivolous lawsuits is no more accurate than the stereotypes that all cops are corrupt or that all members of the clergy have sinful interest in choir boys. However, much like those two examples, the bad apples are the ones who make the press because everyone loves a good "Look at this, lawyers are the devil" story.

What Exactly Is A "Frivolous Lawsuit?"

Frivolous lawsuits come in two forms:

  • One form involves a scenario where a person is undoubtedly injured but they "stretch the truth" about whose fault it is. In other words, they sue someone over real injuries, but the claim made against the defendant is based on junk law or is simply not true.
  • On the other end are cases where a person is put in harm's way by a defendant who clearly committed a civil wrong but the plaintiff is barely injured or is not injured at all, and they pursue a case on the basis that their injuries are worse than they really are. For example: Let's say you were in a car wreck. Your car was barely dinged, and you have no injuries other than a cut on your elbow. Sure, you could file a lawsuit, but...why? You can't prove any damages---meaning you can't show a court that you really lost anything. To file a case would be frivolous because there's nothing you need from the defendant. You're fine. End of story.

But Aren't the Lawyers' Own Ads Part of the Problem?

It seems like every week, we hear on the radio about some lawyer filing a claim that is patently ridiculous. Even though such claims are statistical anomalies, they do exist (at least until the court throws them out). But frankly, many lawyers feed the public's paranoia about frivolous lawsuits with advertisements that make it seem like money just falls from the sky in personal injury cases. Naturally, the subtext of their advertisements should be "results not typical" or "this person made X dollars but they had to suffer immensely" but that's rarely the impression given. The most popular lawyer commercials are indeed the ones which create an unrealistic impression about how the law works. Gee, thanks, TV lawyers.

Wait a Second! Can't a Lawyer Just Lie and Settle a Case Out of Court?

Maybe you're thinking "Sure, bad lawsuits get thrown of court, but what about all the lawsuits that never make it to court? Don't those just get settled for mega bucks and no one of consequence learns about the lawyer's transgressions?" At the end of the day, a lawyer's ability to settle a case hinges directly on leverage he can use in negotiating. And where does that leverage come from? Juries. Full stop. No lawyer in the history of law can broker a settlement in a case without merit simply because he's a smooth talker. 100% of the leverage that a lawyer has in negotiating a settlement is predicated on the phrase, "I think you should settle for X because a jury will make you pay X+Y." Juries aren't stupid. They won't make a defendant pay some amount of money if they think the case lacks in merit.

Sure, a lawyer can perhaps bluff his way into a settlement on essentially-meaningless cases where the stakes are low, but no self-respecting defense attorney (you know, the incredibly competent trial lawyers who represent the person being sued) will advise his client to settle in a bogus case when the stakes are even remotely high. Let's think about that a second. If a case is worth $5,000 and is entirely lacking in merit, then sure, maybe a defendant would conclude that it's just easier to pay the settlement than it would be to fight the case. That would be bad, no doubt, but it's hardly the national crisis some people would have us believe it is.

But if the entire premise here is that a lawyer is greedy enough to lie about the merit of a case, why on earth would the very same greedy lawyer waste his valuable time pursuing a case that is worth so little money that the defendant would deem it worthless enough to settle even when the defendant is in the right? Think it through--the logic is circular. If a lawyer is greedy and wants money (take the lawyer out of the equation and that's generally called "capitalism" rather than greed), then scheming his way through small-time cases is a pretty flawed strategy. The lawyer would need to swing for the fences and bluff on a big case... which would be virtually impossible to do, since any case worth a reasonable amount of money will be more cost effective to defend than to settle. Here's another thing to consider: plaintiffs' lawyers will tie up a minimum of $50,000 in expenses and God only knows how much in attorney time in any reasonably significant case that goes to trial. So can a lawyer try to bluff on a case that's valuable? Sure, but if he loses he will lose in a very expensive way. That's what we call a self-correcting problem.

In other words, yes, there may be lawyers that do try to scheme their way through frivolous cases. However, the nature of doing so would mean that they either can't effectively do so on big cases (take a crummy case in front of a jury and lose, and you're going to take a six figure bath) or they can potentially do so on small cases, but how they heck is that ever going to be profitable enough to justify the effort?

The bottom line is this: filing frivolous lawsuits is not how I keep my lights on. I have no idea how anyone makes money from filing bonehead lawsuits that have no merit, and the simple fact is that most lawyers that do that very likely don't keep their own lights on for long. All the cases my firm takes are based on our assessment that they're worth our time because they are legitimate.

Frivolous lawsuits do occasionally serve to undermine our judicial system. But the idea that they are prevalent has become a bogeyman used by the insurance industry et al to scare folks into hating lawyers so much that they'll vote for laws that harm legitimate claims to "solve" a problem that barely exists.