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Rick Perry: “Frivolous” Lawsuit is OK as Long as He’s the One Filing It

10 comments

Today marks a great day for the American people; Governor Rick Perry has dropped out of the Republican presidential race. In August, I wrote a blog titled, “Top Ten Things Rick Perry Should Apologize For (So Far…Campaign Has Just Begun!).” Now that his campaign is coming to an end, I would like to add one more thing the Governor should apologize for, but I can promise you it won’t be the last apology.

11. Filing a Frivolous Lawsuit. In order to be placed on the presidential ballot, Virginia requires candidates to obtain the signatures of 10,000 registered voters, including 400 from each of the state’s 11 congressional districts. Virginia law also allows only residents to circulate petitions. Governor Rick Perry knowingly failed to submit enough signatures and then filed a federal lawsuit to force the state of Virginia to put him on the ballot. So, he knew the requirements, failed to comply, and then filed a lawsuit contending that his constitutional rights were violated.

On January 13, U.S. District Judge John A. Gibney said that because Perry knew of the requirements and had ample time to get enough signatures, his constitutional argument was late. If Perry decided that the law was unconstitutional, he could and should have filed a claim well in advance of the December deadline to turn in signatures. Perry appealed Gibney’s decision and asked the U. S. Court of Appeals to order his name be placed on the ballot, or order that ballots not be printed or mailed before his appeal is considered.

It took less than a month, for this case to be thrown out. Why? Because the lawsuit was “frivolous” – one with no legal basis; one that is so petty, suit isn’t justified. Governor Perry has experienced, first hand, how our justice system deals with “frivolous lawsuits”; judges review them and dismiss them; in short order there are mechanisms in place to prevent and dismiss “frivolous” lawsuits. In Texas, Perry was proud of the fact that he sponsored and passed “loser pays” legislation. So, the important question is: “Hey, Mr. Loser Pays, have you cut a check to the court and to the defense for filing your “frivolous lawsuit”?

In Texas, Governor Perry has been railing against trial lawyers for years, indicating that frivolous lawsuits were “bad for business” and that restricting court access was a good thing. But he didn’t really mean “frivolous lawsuits” like his Virginia lawsuit. He successfully lobbied for damages caps on serious lawsuits. Why? To bail out and protect greedy corporate donors from being sued, successfully, for the serious injuries caused by their negligent or egregious conduct. In other words, corporate profits were more important to Perry than the rights of Texas citizens to right wrongs in litigation. In his book, Fed Up, he argued that states should be free to adopt their own laws. But when the Virginia law hurts his Presidential campaign, he tries to persuade the federal courts to overturn it; talking about wanting to have it both ways!

I have written blog after blog about the civil justice system. It works just fine, thank you very much. As is evident in Perry’s case, there are mechanisms in place to quickly dismiss a case if it is deemed “frivolous”; judges will not allow worthless cases to clog the courts. The “frivolous” case often ends with serious cost assessments and other consequences to the lawyer and the plaintiff who brought it. Again I ask you, Governor, are you putting your money where your mouth is? Have you written the check yet?

Do you now see how our civil justice system works, Governor Perry? The few frivolous cases, like yours, are summarily dismissed. They don’t clog dockets; they rarely see a jury. We do not need reform for these cases. But that was never what your anti-citizen, pro-corporate interest, campaign was about, was it? You succeeded in limiting seriously hurt people from collecting fair compensation from serious corporate wrongdoers. You never sought to limit the “frivolous”; you always sought (and seized every opportunity) to punish the victims and reward the perpetrators.

Congratulations on pulling the wool over the eyes of the Texas public, the citizens who must foot the bill for amounts of money that tort reform prevents citizens from collecting from wrongdoers. Congratulations for accomplishing the first corporate “bail out” in an American state. And, thank God that America caught on to your act, even if Texas didn’t, and dismissed you as the inadequate Presidential candidate that you were. And, you have added another title to your resume: “Tort Reform Hypocrite”. “Frivolous lawsuits” are fine, if you or your misguided colleagues are the ones filing them.

The injustice of tort reform and loser pays impacts the lives on innocent victims; it penalizes victims and taxpayers for the wrongful acts of others. These measures do nothing to curb "abuse" or "frivolity"; what you call “tort reform” only restricts citizen access and damages for serious injuries. Tort reform is not about “lawsuit abuse” or '”jackpot justice”. It is not about “frivolous” lawsuits; it is about capping recoveries in serious cases, when serious injuries have resulted from serious breaches of conduct.

You have spent years destroying the rights of the citizens of Texas; for years you have trampled on the constitutional rights of innocent victims to the benefit of corporations and then, falsely proclaimed that your misbehavior was responsible for job creation. Finally, though, you have actually done something for the good of the citizens, for the good of the country. Finally, I support one of your positions. The country could not possibly stomach 4-8 years of the likes of you. Thank you, thank you, for stepping out of the race. Could you do one more thing for the good of the citizens? Do what is just and right for Texas and don’t run for re-election as governor.

Perry had this to say as he dropped out of the race:

"I've always believed the mission is greater than the man."

Twice in one blog, I agree with Rick Perry! My mission is to eradicate tort reform and the myth that the civil justice system needs this ridiculous corporate bailout. I will continue to expose politicians like Rick Perry who put needless corporate interests ahead of citizen interests. As for Perry’s future, it is my sincere wish that the citizens of Texas treat him exactly the way the citizen of Iowa, New Hampshire, South Carolina and Virginia have. I sincerely wish you well in the private sector.

Mark Bello has thirty-five years experience as a trial lawyer and thirteen years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury, litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Mississippi, Connecticut, Texas, and Tennessee Associations for Justice, and Consumers Attorneys of California, member of the American Bar Association, the State Bar of Michigan and the Injury Board.

10 Comments

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  1. jc says:
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    Mark Bello is at it again – -attacking people with serious concerns about out of control litigation in this nation. 80% of malpractice suits which go to trial are won by the defendant doctor. So malpractice attorneys lose 80% of the time. No other American Industry has an 80% failure rate, yet Mark Bello says the system works just fine and frivolous suits are hardly ever filed. Tell that to the 80% of docs who won their malpractice case and now have to pay higher malpractice rates and their office staff because they couldn’t work for a couple of weeks during the trial. Bello wraps his pious lectures about our bankrupt legal system in high sounding verbage, about protecting the rights of the public when what he is really doing is protecting his pocket book. Say Bello, why not allow docs to countersue lawyers who file frivolous malpractice suits – -you know, even the playing field a little bit. You say that frivolous suits are never filed so if docs could countersue plaintiff attorneys, the plaintiff attorneys would always win. Bello won’t answer this one because he wants to keep the system the way it is so the money can roll into his pocket.
    Bello wants everyone to be accountable except plaintiff attorneys.

  2. Mark Bello says:
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    Dr. Cox: Do you ever actually read what I write? This is the story of a frivolous lawsuit. It is the story of how quickly the civil justice system handles them and gets rid of them. Yes, Dr. Cox, there are frivolous lawsuits; there are already mechanisms built into the system to deal with them and punish the offenders. Anyone with paperwork and a filing fee can file a lawsuit. Only a serious content lawsuit can sustain itself through the system. Thus, your” angry doctors who wish to countersue the lawyers who sue them” are entitled to do so. All you ever seem to do is repeat the same, tired, untrue “doctors win 80% of the time” nonsense. You conveniently ignore all of those cases that have resolved, in favor of the plaintiff, without a trial. Further, tort reform, most often, does not seek to remedy the problem that bothers you so much. I have never seen (and never wil) a tort reform measure that prevents someone from filing a frivolous lawsuit. The tort reform measures that I have seen almost always feature a cap on the damages a citizen can collect for pain and suffering. What “frivolous” case needs that? Even if your 80% figure was accurate (we both know that it isn’t), the measures you support would not prevent the filing of a single one. Neither this post, nor its predecessors, argue that there are no frivolous lawsuits. Your buddy Rick just filed one and go his ass kicked out of court in a month! But, the system handles them just fine and, if they are truly “frivolous”, they never see a jury trial. JUDGES CAN AND DO SUMMARILY DISMISS THOSE CASES THAT THEY DEEM TO BE FRIVOLOUS. THEY OFTEN PENALIZE THE PLAINTIFFS AND THE LAWYERS WHO FILED THEM Stop your whining and lying and answer the real question posed in every tort reform post I have ever written: If tort reform is supposed to stop the filing of “frivlolous” lawsuits, why does it ALWAYS feature an artificially low damages cap on SERIOUS ones? To dumb it down for you: Why would a worthless case need a damages cap? For once in your commenting life, answer the REAL question posed in these blogs.

  3. jc says:
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    Worthless cases need to be dismissed as soon as possible, which is rare in the legal world. I have reported in this blog about a malpractice case that went on for 6 years because of a typographical mistake on a report for which the doc was not responsible. The report had no effect on the patients outcome and 2 weeks before trial Judge Reed finally decided to throw it out. This is typical of the frivolous malpractice cases which I see.

  4. jc says:
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    Bello I am going to answer your question for you regarding damage caps and then I am going to ask you a question and see if you have the guts to answer it. Damage caps are usually placed on “pain and suffering” (Hedonic) damages, as they should be. These are subjective damages which tend to be emotionally driven. What is $50,000 of pain and suffering to one person is $50 million to another. By artfully using pain and suffering damages, and emotionally swaying the jury you could financially wipe out a doctor and send him into poverty for making one career mistake. These damages are similar to punitive damages without the malicious intent. Without limits on these damages, my malpractice rates would be 35-40% higher which would translate into higher costs which would have to be passed onto the public. Therefore, society has decided to limit hedonic damages. (Note that actual medical damages and lost wages are usually not limited.) Now my question: If plaintiff attorneys never file frivolous malpractice suits, why are all plaintiff attorneys opposed to allowing docs to countersue plaintiff attorneys for frivolous litigation? Lets see if Mark Bello has the guts to answer that question.

  5. jc says:
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    Bello you stated that my 80% statistic was not true. Scott E. Diamond, a Pennsylvania plaintiff attorney reported that in 2009, 154 malpractice cases were filed in Pennsylvania and only 23 returned verdicts for the plaintiff. That means plaintiff attorneys (That means you, Mark Bello!) only won 15% of their cases for an astounding 85% failure rate at trial. Because these statistics vary somewhat by state, I use the general statistic of 80% trial failure rate for plaintiff attorneys. The average plaintiff malpractice attorney has a better chance of winning a coin flipping contest than winning a malpractice trial!

  6. Mark Bello says:
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    Again, Dr. Cox, do you read what I write or do you just see a post and launch into your canned baloney? I already indicated, in the comment previous to this one, that I have no problem with a doctor suing a lawyer. He/she must subject him/herself to the same standard of seriousness/frivolousness that the lawyer does. And your “answer” did not answer the question I posed. How do caps on ANY KIND of damages prevent the filing of frivolous lawsuits? Even your so-called “answer” reveals what you are really after. You want “lower malpractice rates” and the right to screw up without “penalty”. Correct? You could care less about “frivolous lawsuits”; get off your soap box and tell the truth for a change.

  7. Mark Bello says:
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    Now that I have your statistical basis for you constant “80% failure” nonsense, I can’t stop laughing. One lawyer posts 2009 statistics for how many verdicts were plaintiff verdicts and you interpret THOSE RESULTS as a 85% failure rate?! Read your own statistical analysis! It is one year, in one state, and it says 23 resulted in VERDICTS! What it does not say is that the other 131 cases failed! It doesn’t say how many settled; it doesn’t say how many were tried to a defense verdict or why. IT IS NOT A FAILURE RATE! Thus, as I have tried to tell you, numerous times, your ‘80% failure’ statistic is based on your misinterpretation of the data provided. If only 154 malpractice cases were filed in Pennsylvania, I would hardly be screaming “lawsuit abuse” at the top of my voice. If Lindsay Raker’s statistics are correct and only 20% of malpractice instances are reported, that means that the number of lawsuits should have been closer to 1000 but for the medical industry cover-up of malpractice instances. Are those cases “failures” too?

  8. jc says:
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    Well, Mark, I am glad you cleared that up. I misspoke, that was 154 malpractice cases in Pennsylvania THAT WENT TO TRIAL IN 2009 ONLY 23 VERDICTS WERE FOR THE PLAINTIFF! So the plaintiffs lost over 85% of the cases that went to trial, which is a failure rate unmatched in American industry. Caps of any kind do not in themselves deter frivolous litigation. If doctors were allowed a new cause of action, the right to sue a malpractice attorney for a frivolous lawsuit, that would deter frivolous litigation. Currently no state will allow that cause of action against a plaintiff attorney. Actually, Mark, I want medical courts because I feel that it could provide faster fairer decisions for both the plaintiff and doctor and get rid of the “blame and shame” game and huge legal fees charged by the attorneys. The current malpractice system promotes “hiding” mistakes because no one would voluntarily go thru years of legal hell. The current malpractice system only benefits greedy plaintiff attorneys like you. So admit it, you want the current malpractice legal system so that you can buy a new mansion.

  9. Mark Bello says:
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    Dr. Cox: Cite me an official report and respond to Lindsay’s statistics of unreported cases of malpractice. Statistics need to be accurate (yours aren’t, as usual) and they need to be reported both ways. “Loss” does not translate into “frivolous”. Just as lawyers win some cases that they should have lost, doctors win some cases that they should have lost.

    Again, none of this has been the point of any post I have ever written. I do not support the filing of “frivolous” cases; there is no ecomomic purpose served by such a filing. However, as you know, I strongly oppose the lie that is “tort reform”, this almost always involves caps on damages which are not mechanisms designed to stop the filing of “frivolous lawsuits”. Tort reform is a mechanism that allows corporations and insurance companies to pay less money to seriously injured citizens; if the consequences for harmful behavior are limited or reduced, this encourages more wrongful behavior. Can we agree on that?

  10. jc says:
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    Bello: Your questions are hard to answer in one blog quote because you ask multiple questions at once and then blast me if I answer one question and miss the 10 others. Select one thing that you want me to answer and we will debate that and go on to the next thing. I answered your question regarding caps and frivolous litigation in my last post, and I will repeat myself, caps do not affect frivolous litigation. States need to enact a new cause of action so that doctors can countersue plaintiff attorneys who file frivolous lawsuits and that would cut down frivolous litigation. If a person has been harmed, actual damages including medical damages and lost income should be allowed and not caped. Pain and suffering damages should be capped because they are subjective and often substitute for punitive damages without malicious intent. By the way, I believe that punitive damages should be allowed when malicious intent can be shown. If you would like to debate the above points, that is fine, if I missed a question you want answered, I will answer it subsequently.