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What About Frivolous Defenses?
Friday, January 8th, 2010

Much has been made in the media in recent years about the so-called “frivolous lawsuit” and citations to the McDonald case or more recently to the D.C.-area Judge suing for millions for his dry-cleaning.

On a basic level the “frivolous lawsuit” is non-existent or at most an endangered species.  The reality is that plaintiff’s trial work has a built in system of checks and balances that ensures that no such lawsuits prevail; namely the free market system.

What people often overlook is that lawsuits and legal proceedings are costly to maintain and continue.  The overwhelming majority of injured people who make claims do not have any significant assets.  What little assets they do have are undoubtedly stressed from the added expenses of paying for the treatment for their injuries and the fact that they often physically cannot work.  Stated simply, in addition to more money going out, there is no money coming in.

Practically speaking, what happens is that the injury attorney often incurs the cost of keeping the litigation going and agrees to be reimbursed from the eventual judgment or settlement funds at the conclusion of the matter.

If the cases are not successful, lawyers for the injured people simply cannot stay in business.

True, the injured party’s lawyer still has a valid claim against their client or former client for reimbursement of the costs, but the client is in no better position to pay back the lawyer than they were to front the costs in the first place.

For that reason, it is in the injured person’s attorney’s vital interest to take a hard look at any case prior to signing it up, and not agree to represent any client on a matter without merit.

The other side does not have this problem.  When someone is responsible for causing an auto accident, they turn the matter over to their insurance company to defend them.  This is a big part of what your premium goes to pay when you purchase auto insurance.

But some insurance companies put forth frivolous defenses. For example, I have had an insurance adjuster argue that an injured person is partially responsible for not swerving out of the way of the defendant.  Despite the fact that the defendant ran a red light, received a citation, and pled guilty, the insurance company denied fault.

Such defenses unfortunately are a routine part of the personal injury litigation process.  What many people don’t understand is that once an insurance company is involved in defending a claim, the defendant has little or no say as to what happens in the case from that point forward.  Even if the defendant wants to settle the case and pay the money to the injured party, only the insurance company makes that decision.  Thus, the insurance company is free to take whatever position it feels.

Insurance companies by their very nature study risk in order to maximize the amount of money they keep.  Therefore, if they feel that they can keep more money in the corporate coffers by taking unreasonable positions and asserting frivolous defenses , they will do so.  Their clients have no real power in the situation, and the injured people and personal injury attorneys must deal with these positions which serve to delay the process and the reimbursement that they rightfully deserve.  This is also a function of the fact that defense attorneys are paid by the hour.  The longer a case takes, the more money they make.  Injured people’s attorneys are paid only if they are successful and the more time it takes, the less the attorney makes.  Defense attorneys make more money the longer something takes.

Many times at trial, or literally immediately prior to the beginning of trial, a defendant’s insurance company will first agree that the defendant was at fault.  In a stipulated liability trial (one where it is agreed who is at fault for the incident) the jury is often confused as to the need for a trial at all.  Often it is a result of the defendant’s insurance company taking unreasonable positions and forcing an injured person to do the only thing they can do and follow through to the very end rather than take the low offers, based in part on unreasonable defenses.  Unfortunately, jurors and the public do not hear about the frivolous defense nearly as much.

The frivolous defense costs all of us money.

It delays the resolution of cases, clogs up the courts, and racks up greater and greater costs.  The insurance company in turn must pay its attorneys for more hours, and it turns around and passes this higher costs on to the consumers in the form of more expensive insurance premiums.  Many times there are situations where both drivers agree it was the defendant’s fault, the other person’s injuries are clearly related and obvious.  The way the system was designed, theses people should be fairly compensated for their injuries, and the defendant’s assets would be protected by payment from the insurance policy.  The frivolous defense however has derailed this system by inserting incentives of delay and unreasonableness in order to make more money for the insurance companies.

 

1 Comment » Comments on this Entry

One Response to “What About Frivolous Defenses?”

  1. Travis Mayor says:

    You are absolutely right. The public never hears about frivolous defenses asserted by insurance defense attorneys. I have a current case where the 84 year-old defendant told the police officer that it was dark and he could not see after he rear-ended my client. He subsequently pled guilty to a violation for following too closely. Despite these facts, his insurance company denied liability and the defense attorney asserted a frivolous defense that my client caused the accident without any factual basis for doing so. The public needs to be informed about the dirty tricks used by the insurance companies and their defense attorneys. Great post!

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