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What You Should Know

The Myth of 'Frivolous Lawsuits' Choking Our Civil Justice System

For a civil trial lawyer, jury selection presents many challenges but the greatest obstacle to getting a fair jury is punching through the years of insurance company propaganda about “frivolous lawsuits” and “greedy trial lawyers.” While civil trial lawyers have always known the complete fallacy of those punchline canards, court clerks from across America have compiled detailed statistics regarding the absolute number of civil lawsuits and the specific categories of cases dominating the docket. The national numbers bear out what Tallahassee trial lawyers have known for years: tort (negligence) lawsuits comprise a tiny fraction of the docket and that tiny fraction has been remarkably consistent through the decades.

First, let’s define some basic terms to give the readers perspective. When insurance companies and other multi-national corporations claim they are the victims of an avalanche of “frivolous lawsuits,” please understand they are referring to cases of personal injury victims bringing claims against them for just compensation after suffering injuries through no fault of their own. They are almost certainly NOT referring to the multitude of cases THEY file, such as contract cases, construction lawsuits, declaratory judgment actions, administrative actions, etc. While many of those insurance company actions may well be considered objectively “frivolous,” that is, with no basis in law or fact, those large corporate entities jealously guard their access to the courtroom. Insurance companies also consistently try to limit the average person’s constitutional right of access to the courts and right to trial by jury by advocating and bankrolling tort “reform” legislation which is invariably anti-consumer and a form of corporate welfare.

Second, when referring to “greedy trial lawyers,” the insurance companies are referring to plaintiff’s attorneys (civil trial lawyers), who represent the injured against the wrongdoers and their insurance companies or against other large corporations. Trial lawyers represent injury victims on a contingency fee basis, that is, we do not get our attorney’s fees and the costs we have fronted (which often range from thousands to tens of thousands of dollars, or more) if we do not produce positive results for clients in either a settlement or jury verdict. We shoulder all the financial risk of litigating cases- cases which take a tremendous amount of time, hard work, skill, and money. We are opposed by skilled and experienced insurance defense attorneys who take no personal financial risks and have a multi-billion dollar insurance company footing all their costs- while also sending them a monthly attorney’s fee check.

Therefore, the notion of “greedy trial lawyers” filing an avalanche of “frivolous lawsuits” against the insurance industry is laughable on its face. Filing a meritless lawsuit with no factual basis and/or legal basis is unethical and sanctionable under the rules of professional conduct which bind all Florida lawyers. It also is a quick ticket to financial ruin as filing marginal, tenuous and arguably “frivolous” cases will put any law firm out of business in short order.

In my twenty years as a trial lawyer, I can count on a couple fingers how many of my colleagues I would consider unethical and worthy of the insurance company moniker of a “greedy trial lawyer” filing “frivolous lawsuits.” It is simply so rare as to be statistically meaningless, and certainly not worthy of the broad condemnation the insurance industry so vigorously and incessantly propagandizes.

Here are the numbers: http://www.ncsc.org/~/media/Microsites/Files/Trends%202016/Meeting-the-challenges.ashx.

As can be seen, tort (personal injury) cases are only 7% of the civil court caseload. Debt collection, landlord/tenant and small claims cases (which are $5,000 or less in Florida) comprise 58% of the civil docket. As noted in the study, “[t]he protracted and expensive civil cases that have dominated discussions about civil justice reform comprise only a small proportion of civil cases filed in state court each year.” Hence, the incessant insurance industry mantra of “frivolous lawsuits clogging our nation’s courts” has no factual basis whatsoever, and never has.

Then why does the insurance industry push this false narrative? Surely the insurance industry does not want to shield wrongdoers from the consequences of their actions. Surely the insurance industry does not want to put its corporate profits over a greater social and corporate responsibility it should champion. These are questions all Americans should ask of a powerful industry that affects all of our lives.