Until now, we’ve ignored a small left-wing think-tank’s admitted attempt to create a Bizarro-world version of Overlawyered. The writers are a recent college graduate and a recent law-school graduate who don’t appear to have actually read anything reformers write in support of reform. (For example, one post links to Overlawyered when defending the infamous McDonald’s coffee lawsuit, but fails to address any of Overlawyered’s arguments for why the McDonald’s coffee case is meritless, and simply repeats ATLA propaganda that Overlawyered refuted.) The blog has consisted mostly of thoughtless regurgitation of trial-lawyer talking points; when original analysis is attempted, it rises to the level of self-parody, such as an analysis of Leonard v. Nationwide (see POL Sep. 7 and links therein) that ignores the language of the insurance policy, the relevant Mississippi precedent, the existing discussion in the blogosphere, and any semblance of public policy rationalization in lieu of a Wikipedia definition to argue that the decision (and the defendant) are racist because some African-American plaintiffs might lose as a result.
Another such post is Justinian Lane’s “The Myth of the Frivolous Lawsuit.” The standard trial-lawyer talking point on such issues is to redefine “frivolous lawsuit” to consist of an exceedingly narrow subset of what it is laypeople are talking about when using the term “frivolous lawsuits,” note that the legal system has some mechanisms to address this narrow subset of cases, and then conclude that there’s no problem and thus no need for reform. (Or, as per John Edwards, announce Potemkin legislation to tackle this artificially constrained set of “frivolous lawsuits” that does nothing to actually address the problems of the tort system.) But Lane, perhaps because of his unfamiliarity with the legal system, bites off more than he can chew and inadvertently proves the reformers’ point.
Here’s the critical part of Lane’s argument why frivolous lawsuits are a “myth”:
But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?
This tool not only exists, but has been in use in America since 1937; it’s called the Summary Judgment.
The purpose of the summary judgment is to determine whether there is a genuine need for trial. When a party files a motion for summary judgment, they’re telling the court that there is no need for trial because the facts and law applicable to the case would prevent the other side from winning.
We’ll use a fictitious car wreck as an example of how a summary judgment would dispose of a frivolous lawsuit:
Mr. Smith runs a red light and slams into Mr. Jones. Mr. Smith claims the light was green, but two witnesses say the light was red. Mr. Smith is found to have a blood alcohol level that is nearly twice the legal limit. Mr. Smith doesn’t dispute the fact that he was drunk, but still decides to sue Mr. Jones for the damage to his car and for his medical bills.
Mr. Jones hires a lawyer. Mr. Jones’ lawyer spends a few hours drafting a motion for summary judgment. At the end of the motion, Mr. Jones’ lawyer requests he be awarded attorney’s fees from Mr. Smith because the lawsuit is frivolous.
The lawyer for Mr. Jones files his motion for summary judgment, and includes evidence that Mr. Smith was legally intoxicated, and under the laws of that state, therefore legally responsible for the accident, even if he didn’t run a red light.
In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed. The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court.
Let’s be clear here: Lane thinks that Smith has brought a frivolous lawsuit, and that the legal system should, as a normative measure, operate to (1) throw Smith’s case out of court at the summary judgment stage, and (2) award Jones attorneys’ fees. Because the legal system already does this, Lane argues, there is no need for reform.
The problem with Lane’s analysis is that his premise is incorrect. In just about every jurisdiction, Jones could not win on summary judgment; moreover, even if he could, Smith would not be liable for Jones’s attorneys’ fees. So long as Smith testifies that he had the light and Jones was the one who ran the red, it doesn’t matter how many other witnesses there are against him; there is a material dispute of fact that can only be resolved at trial, and Jones is on the hook for the trial defense—and perhaps also a verdict against him if the jury gets it wrong. This is not purely hypothetical, either; I’ve documented likely perjury in the Vioxx litigation; we’ve seen such perjury without consequence in asbestos and silicosis litigation; we’ve seen plaintiffs win huge lawsuits against auto manufacturers when the driver fell asleep (Nov. 21; Nov. 17). (And need I mention the jury that awarded millions to the woman who spilled coffee on herself?) Lane agrees that these suits are frivolous, but thinks that the summary judgment mechanism resolves them. The problem is that the summary judgment mechanism does not resolve them, and neither does the directed verdict or the judgment as a matter of law mechanisms.
Recall: “But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? Wouldn’t such a tool be a better solution than passing laws that would hurt individuals with legitimate lawsuits?” Hey, I’m all for that, too! Problem is, there isn’t such a tool currently, and trial lawyers fight every attempt to add such a tool (or even to add baby steps towards such a tool) to the system.
In effect, Lane is arguing in favor of reform! Walter Olson has long argued that there should be loser pays; Lane agrees that Smith should pay Jones’s legal fees and that it would be unfair if he didn’t, but opposes reform because he thinks that such a mechanism is already in place. The problem is that there isn’t. Phillip Howard has long argued that judges should have more power to throw meritless cases out of court; Lane seems to think that this power already exists (and should be used); Lane opposes reform because he thinks the necessary mechanism is already in place, when in fact it isn’t.
That leaves two possibilities: either Lane is being knowingly dishonest in arguing against reform and trying to trick people who don’t know any better into agreeing with him; or Lane, if he knew all the facts and studied the issue, would come down on the reformers’ side, and mistakenly thinks that the system isn’t broken.
I’m inclined to believe that Lane’s mistake is one of ignorance, rather than dishonesty, and I’m inclined to believe that because I had the same ignorant opinions about reformers while I was in law school and excited about the idea of litigation as a public-policy tool. It took a couple of years of real-world experience before I realized that the theories of law school didn’t translate especially well in a legal system that tolerates abuse and perjury and junk science, where the transactions costs of litigation permitted economic blackmail, and where gigantic punitive and noneconomic damages awards multiplied the effects of jury error such that one bad jury could overwhelm a hundred juries that got it right. If Lane means what he says in his post, and if he corrects the factual errors he makes, his positions are far closer to Walter Olson’s than to ATLA’s. The question is when Lane will realize that his supposed allies don’t agree with him.