When a lawyer goes to a party, there are two things he can always count on.
First, someone is going to tell him a terribly clever lawyer joke that was old when Abraham Lincoln was in the White House.
Then, the same person is going to ask him for some free legal advice. Given the fact that I litigate cases for a living, I usually get a question that starts with “Say, can you get sued if..."
In reality, there is only one correct answer to this question: “Anyone who can afford the filing fee can file a lawsuit against you for any reason, or for no reason at all."
A good number of my clients are defendants who believe they have been sued for no reason at all. They feel that they are the victims of “frivolous lawsuits,” a term that is commonly used, but not well understood.
This year I will have several posts explaining a little about what frivolous lawsuits are, and how a lawyer can defend his client against them.
The first thing that you have to understand is that a lawsuit is not frivolous just because the plaintiff eventually loses.
Unless a case is settled, one side or the other is going to lose. It is not frivolous for a plaintiff to bring a lawsuit, and it is not frivolous for a defendant to defend a lawsuit, just because he loses.
For a claim to be truly frivolous, a plaintiff must lack any reasonable basis for filing his complaint.
One type of frivolous lawsuit, and the easiest to handle, is the claim that is not supported by the law.
For example, a plaintiff might file a complaint alleging that your adult son negligently caused a car accident, injuring the plaintiff. The plaintiff not only sues your son, but sues you as well, alleging that you as a parent are also responsible for the damages.
As a matter of law, you have no such responsibility.
In response to this complaint, before anything else happens in the case, your lawyer can file a “motion to strike.” A motion to strike basically says that the facts alleged in the plaintiff’s complaint even if they are true do not entitle the plaintiff to a judgment under the applicable law. If the motion is granted by the court, the complaint is dismissed immediately.
If a motion to strike is denied, it does not mean that the judge believes the plaintiff. It just means that the allegations in the complaint are enough to support a legally valid claim, if the allegations can be proved.
Of course, a plaintiff can allege anything he wants in his complaint. A lawsuit can still be frivolous if the plaintiff lacks the evidence to back up his allegations. This is a second type of frivolous suit, and I will take this up in my next post.
Have a question or a suggestion for a topic? Contact Dennis at email@example.com.
Patch posts are general discussions and should not be used as advice on any specific legal matter. If you need legal advice on a particular situation, please consult an attorney.