If you peruse the Internet, you will read a lot of nonsense about so-called “frivolous lawsuits” and/or “lawsuit abuse”. These terms are inventions of the U.S. Chamber of Commerce and big industry (insurance, tobacco and pharmaceuticals) to brainwash the public into thinking that the civil justice system is unfair to billion dollar corporations. Unbelievably, this campaign has been somewhat successful. Industry suggests that this lawsuit or that one is “silly” or “outrageous” and that they represent the typical lawsuit that an attorney would file for a client. Then, they beg for legislation to curb this “abuse”. Usually, this legislation takes the form of a damages “cap” on recovery. Someone from these industries needs to explain why caps on a “ridiculous”, “outrageous” or “frivolous” lawsuit needs a damages cap; if a lawsuit is frivolous, it is by definition, worthless, thereby needing no cap.
Here is the cold, hard truth: There are far more frivolous defenses pursued by insurance companies and well-financed corporate defendants than there will ever be frivolous lawsuits. A rather high-profile lawsuit filed against Baron Hilton, brother of Paris Hilton, is a perfect example of what I am talking about.
Hilton was driving under the influence in July 2008. He pulled into a gas station and plowed into the gas station attendant with his Mercedes Benz. He was arrested; his blood-alcohol level registered .14. That is dangerously close to two times the legal limit in California. Witnesses said that Hilton was involved in at least one other accident and was driving the wrong way, for miles, down the Pacific Coast Highway, before pulling into the gas station.
The unfortunate, totally innocent, attendant is permanently disabled; he will need ongoing surgeries; he is unable to work, unable to provide for his family. He was in the wrong place at the wrong time. He filed a personal injury lawsuit which should have been a ‘cut and dry’ case, right? Well, if you recall, this accident took place in July 2008; it took three years to obtain an award in the case. No money has changed hands yet; this disabled attendant has gone years without an income. Why? It is because Hilton, with the professional assistance of his insurance company and the insurance company lawyer, engaged in frivolous defenses.
Hilton was first charged, in the criminal system with DUIL; he pleaded no contest to the charges. However, although pleading the equivalent of “guilty” in the criminal case, the case with the higher burden of proof, Hilton did a 180 in the civil case. In the civil case (the one for money damages, defended and controlled by Hilton’s insurance company) Hilton suddenly decided that he was not the driver that night. I kid you not; this was the defense, even though eye witnesses placed him behind the wheel. Think that defense (after a criminal ‘guilty’ plea) is outrageous? Frivolous? You haven’t heard anything yet! For his next trick, this slippery magician claims to have had amnesia; he recalls nothing but sitting on a bench at the gas station after the accident occurred. He refused to admit guilt for something he had already admitted to by pleading no contest; he then added insult to injury by pursuing not one, but two, frivolous defenses.
The civil justice system has checks and balances for frivolous lawsuit filings; if a case is deemed “frivolous”, it is quickly dismissed and costs are usually assessed against the filing party. Judges have wide discretion to dismiss these worthless cases. Not so for frivolous defenses. Since the burden of proof is on the plaintiff in a civil case, the plaintiff is forced to prove his/her case by a preponderance of the evidence. The plaintiff can seek summary dismissal of a defense, but this is rarely granted. So, in this case, and many like it, the defense clogs court dockets with unfair tactics, “frivolous defenses”; these deliberate delay and refuse defenses cost everyone a lot of time and money.
Because Hilton and his insurance company delayed justice, the plaintiff’s attorney was forced to spend hours and hours of discovery, retain experts, and prepare for trial. The victim was dragged through a legal quagmire for years. This was done for no reason other than to try to cause enough financial desperation to get this man to settle too early for too little compensation.
I founded my company, Lawsuit Financial, to provide financial assistance to people just like the plaintiff in the Hilton case. To prevent an early, inadequate, settlement, Lawsuit Financial pays the important bills and expenses of the plaintiff; we try to eliminate the financial need to resolve the case until an attorney can obtain full value for a plaintiff’s serious injuries and/or disability. I don’t know whether this plaintiff sought a similar service, but it is available to all plaintiffs who fall victim to frivolous defense tactics.
Lawsuits are expensive; the majority of injured people who make claims do not have significant assets. Defendants, typically, do not have this problem. Someone who causes an accident turns the matter over to a billion dollar insurance company; the insurance company likes to hold on to its money, keeping it invested, making more and more money. It engages in frivolous defenses, anything that will prolong the litigation and make the plaintiff more desperate to settle for less. Even in cases like the Hilton case, where the defendant is obviously at fault, where his conduct is outrageous and his defense laughable, the insurance company will “delay, deny, confuse and refuse”. The plaintiff, on the other hand, spends thousands of dollars and years in litigation to negate a frivolous defense. But, the media seems fixated on “funny” plaintiff cases; it never calls industry to task for bankrupting a disabled plaintiff.
Our present system does not seriously punish or sanction the use of frivolous defenses. Do you want to unclog a clogged civil justice system? Call on your state or federal representatives to put an end to frivolous defenses. Tell industry, drunk drivers and their insurance companies to start protecting seriously injured, innocent victims of wrongful conduct.
Mark Bello has thirty-three years experience as a trial lawyer and twelve 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, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.