Frivolous lawsuits

by Chris Markham. 0 Comments

I know we’ve been over some other legal systems lately, Japan and Russia being two of them. I also know these descriptions can be sort of esoteric. This week, though, there’s a really interesting wrinkle coming to us from Italy – the land of good food, great wine and a horrible judicial system.

I imagine you’ve heard of the Andrea Knox trial, which became a circus, which, in no small part, led to her eventual acquittal.

On a separate, but related, note, as I write this, a hurricane is bearing down on our area. It’s Friday, and the models have the metropolitan area being hit with winds, and rain anywhere from Saturday evening, to Monday.

That’s a pretty big window of time. How do I know what to cancel? When should I go to the store to get milk, eggs and toilet paper? Should I start writing angry letters to Pepco today, anticipating a power outage that will last for at least ten days? So many decisions, and too much time to figure out when they could and should occur.

I know there are a bunch of factors that will affect the storm; however, that should be no excuse. Weather people go to school, sometimes even graduate school, and they should have the knowledge and resources to determine when and where a major storm will hit.

I know that’s how most of us feel – bracing for a storm and getting nothing, or going to bed at night, blissfully unaware of the banshee howling in the night, only to wake up to find the house flooded. In this day and age, weather people still can’t get forecasts right, even though science has enabled us to travel to other planets, map the human genome and invent Twitter.

This is just a mere annoyance here in the states. But in Italy, where anything can happen, a few weather people are finally receiving the comeuppance they richly deserve. In 2009, a number of scientists that are alleged experts in earthquakes, noticed and subsequently monitored a few trembles in the town of L’Aquilia. Interesting, but hardly newsworthy as, apparently, this happened with a reasonable amount of frequency in the area. A short time later – BOOM! A major earthquake hit the area.

So Italy made a logical choice – the state sued the experts for manslaughter. The theory goes that because some factors of an earthquake were present, the experts should have triggered the alarms and saved some lives. Apart from the old “Boy Who Cried Wolf” story, this is ridiculous. If this type of suit was attempted in America, I have no doubt it would fail. One good reason for this theory is that it hasn’t been attempted yet.

I speak to potential clients all of the time and I tell them that, in my opinion, they don’t have a case. Sure, I could run up some charges and lose, but what good would that do anyone? Most of these putative clients call me a few weeks later to tell me that some attorney has taken their case, and I’ll be sorry I missed out of the millions and millions of dollars that will be there at the finish line. However, I hear through the grapevine months later that the new guy couldn’t do anything for them. So I know, if there was any hope of getting one of these cases into court, we attorneys in America would have tried it.

Another bar to these types of cases is what we call a “Rule 11” violation. This is named after Rule 11 in the Federal Rules of Civil Procedure, but each state has a similar rule on their books. This rule states, basically, that a lawsuit has to pass the “smell test” in order to be brought before the court. This means that the attorney and the party involved has to believe, and have proof that, the lawsuit isn’t frivolous. If the suit turns out to be frivolous, the party that brought the suit would be responsible for the opposing party’s attorney’s fees and any court costs.

So, in some respects, it would appear that the US isn’t the craziest lawsuit-happy country in the world. And that’s good news.


Chris Markham writes a regular column for

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