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It is important, from the outset of a discussion on frivolous lawsuits, to understand what a frivolous lawsuit is. A frivolous suit is one that has no legal basis or has so little merit that it has a very small chance of success.

Just as important to understand isn’t a frivolous suit. Cases with “wild results” are not necessarily frivolous. These kinds of cases make for great headlines and make great fodder for the tort reform crowd at cocktail parties, but you have to remember that a jury sat and listened to all of the evidence and all of the instructions of law before rendering their result. And then a Judge signed off on the result that the jury rendered.

Virginia Has a Way to Deal with Meritless Suits

If a suit truly has no legal merit (meaning that there is no basis in the law, as it exists, for the lawsuit to stand), the defense attorney can file a legal pleading called a “demurrer.” A demurrer essentially says “Ok, Judge, let’s assume that every fact that that Plaintiff stated in his Complaint is absolutely true. Even if that is the case, there is no theory under the law on which the Court can rule in the Plaintiff’s favor.” If this is true, and there is no way that the Judge can do what the Plaintiff is asking him to do (award a sum of money, award a piece of property), then the cases is dismissed right then and there.

But it Doesn’t Cost the Plaintiff anything to Sue…

We hear this a lot. “Because personal injury attorneys work on a contingency fee basis, it does not cost the Plaintiff any legal fees to sue the Defendant, and so there is no disincentive to bringing the lawsuit.” This statement is true, but based on a couple of false premises. First, it ignores that while the Plaintiff will not owe his attorney money for legal fees, he may still be responsible for costs. And the costs can be high. In a typical auto accident case in Virginia, the costs of filing a lawsuit include:

  • Fees to medical providers to collect all of the medical bills and records
  • A few hundred dollars to actually file the lawsuit
  • Close to a thousand dollars in a deposition transcripts
  • Several thousand dollars in expert witness fees

If the case is lost at trial, the Plaintiff himself may still be responsible for all of these costs.

That argument also ignores the fact that the Plaintiff’s lawyer spent hundreds of hours working on the case and preparing it for trial. The justice system is not a dart board. There is no “jackpot justice,” especially in northern Virginia where the juries tend to be conservative. Plaintiff’s attorneys simply do not work on cases that we think we’re going to lose at trial.

But Juries Do Crazy Things…

This argument almost always goes back to the McDonald’s coffee case. Stella Liebeck has become the posterchild of the frivolous lawsuit. But not because her suit was actually frivolous… she’s famous because the insurance industry did a great job of spinning her case. Read about the actual facts of Stella’s case here. To summarize, this was a woman who suffered third degree burns to 6% of her body from coffee that McDonald’s purposefully brewed at a temperature above the industry standard because brewing coffee at a hotter temperature requires fewer beans and saves money. McDonald’s knew this was a problem because there were more than 700 claims brought against them for the exact same thing in the past ten years and they chose to do nothing about it. The jury, when presented with these facts, awarded Stella $200,000 in compensatory damages (medical expenses and pain and suffering) and $2.7M in punitive damages (equal to two days of McDonald’s coffee sales). Even so, the trial court checked the judgment. The Judge in Stella’s case reduced the verdict to $480,000.


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