While getting the kids ready for school in the morning, I often have the TV on some news program to check the weather, school closings and local happenings before work. What I have been seeing lately is disturbing. Nearly every day, I see a commercial touting the need for tort reform to prevent law suit abuse and “frivolous lawsuits“. It seems unlikely that in the 10 minutes I have the TV on that I am seeing the same commercial the only time it airs, meaning this commercial is on the air quite frequently. This concerns me because the commercial is so misleading.
I have a confession to make. Even though I have been an attorney for more than 10 years and have handled probably more than a thousand lawsuits over that time, I have never personally seen nor brought a frivolous lawsuit. I don’t personally know any attorneys who have done so either. That’s not to say they don’t exist, though. Everyone has heard of the judge who sued his dry cleaner over the lost pants, and I have occasionally heard of an individual who is not represented by an attorney bringing harassing lawsuits against the same person or people over and over again. What you never hear of, though, is an attorney who makes his or her living as a trial attorney bringing frivolous claims. There is a pretty good reason for this, too. As a trial attorney, I have grown accustomed to getting paid at some point in the litigation. Whether it is a personal injury case taken on contingency (meaning I get a portion of the proceeds of the case) or a case taken on retainer (meaning I am paid on an hourly basis) I don’t handle cases where there is no chance of earning my fee. By definition, a frivolous claim is one in which there is no viable cause of action which could earn a fee.
Yet another reason I don’t bring frivolous claims is that the ethics rules governing attorneys prohibit bringing frivolous claims. I am not about to put my license to practice law at risk for a case in which there is no chance of earning a fee. Every other attorney I know feels the same way, which is probably why the frivolous cases we hear about are brought by people representing themselves.
The commercial that prompted this blog makes it seem as if frivolous lawsuits are rampant. My guess is that the people funding this commercial are the same ones who claim that all the medical malpractice lawsuits are frivolous. They claim that the poor doctors are sued so often they settle cases just to get rid of them. Yeah, right. As someone who regularly sues insurance companies, I can personally assure you that they are not settling frivolous claims just to get rid of them. Its difficult enough to get them to put realistic money on legitimate claims.
Here’s something else you haven’t heard about these so called frivolous lawsuits against doctors: unlike nearly every other type of insurance out there, the doctor’s medical malpractice insurer has to have the doctor’s permission to settle the case. Your auto insurance carrier doesn’t need your permission to settle a claim against you, and neither does your home owner’s insurance company, but the doctor has to agree to any payment on a claim made against him, including the so-called frivolous claims. Makes you think a little, doesn’t it?
The next time you see a commercial like this on TV, take a minute to think about the claims they are making and who has enough money at stake to pay the millions of dollars required for an advertising campaign of this magnitude. Think about who has enough at stake to spend that much money attempting to brainwash the public into thinking that the judicial system is bursting at the seams with frivolous lawsuits. Think who would want to have that commercial running through the minds of potential jurors as they climb into that jury box. Do you think that the insurance companies have anything to do with it?
If you want to know why this type of false advertising gets us angry, imagine that you are the Plaintiff and its your future being decided by those jurors with that commercial running through their heads.
Are you angry now?
Thanks for reading,
Adam M. Gee, Esq.
New York and Pennsylvania Personal Injury and Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William Street
Elmira, NY 14901