In installment #1 of this series of blogs addressing the myth regarding frivolous lawsuits, I tried to debunk the myth through common sense by noting some of the practical considerations that make handling baseless cases untenable for lawyers. In other words, practical considerations alone work against the notion that frivolous lawsuits are a staple of the legal system.
In this blog, I will try to debunk the myth further by discussing actual laws and rules that are designed to eliminate and prevent baseless lawsuits.
Very few cases are not defended. Those not defended typically involve parties who are without money or insurance to mount a defense or pay a judgment, making it a complete waste of time and money bothering to obtain the judgment. Anyone bringing suit against such a defendant may end up with a piece of paper, the final judgment, establishing that money is owed. That piece of paper and $1.00 will get the owner of the final judgment a cup of coffee. In other words, in most instances the final judgment is worthless.
Those defendants with the resources to defend, also have at their disposal powerful tools to make plaintiffs think twice about pursuing claims.
Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 allow either party to file a legal pleading against the other that will make the receiving party responsible for paying the moving party’s attorney’s fees and costs unless a certain level of success is obtained in the case.
Since this blog is about the myth of frivolous lawsuits, rather than frivolous defenses, I will confine the discussion to the use of the aforementioned statute and rule by the defendant against the plaintiff.
The pertinent part of 768.79 reads as follows:
Offer of judgment and demand for judgment.
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award.
(FRCP 1.442 sets forth the mechanics of making the offer and demand under 768.79, and, therefore, does not have to be reproduced in this blog to understand the point of this blog.)
A simple example demonstrates how the statute works. After being sued, the defendant submits a 768.79/1.442 offer of judgment/proposal for settlement in the amount of $10,000. If the proposal is not accepted by the plaintiff within 30 days, unless the plaintiff receives a final judgment that is more than 75% (in our example, $7,501) of the amount offered, the plaintiff becomes responsible for paying the defendant’s reasonable costs and attorney’s fees retroactive to the date of the offer. By the end of a trial, the sum of the defendant’s fees and costs can easily surmount $20,000, if not many times more.
This vehicle for pressuring the plaintiff has been in place and commonly utilized in Florida for many years. Defendants are free to decide the amount of the proposal, even to the point of offering $1, $100, or $1,000,000. Plaintiffs receiving these proposals should always give them thoughtful consideration. To do otherwise is reckless and can lead to dire consequences, like a significant money judgment being entered against the plaintiff.
The corporate and insurance company propogandists seeking to poison the well never mention this powerful procedural tool available to defendants, because it undermines their entire proposition, namely, that defendants are helpless to fend of baseless (frivolous) lawsuits. (Defense attorneys, who are paid handsomely, must eat crow or risk losing paying clients in the face of this ridiculous proposition, which, implicitly attacks their intellect, skills, and competence. Call it the power of the mighty dollar.) The truth is far different than the fictional propoganda propogated by those who benefit from undermining the integrity of our civil justice system.
When it comes to outcomes in litigated cases, there is no such thing as a sure thing. Even in the seemingly strongest case, no outcome can ever be guaranteed. Given this reality, who in their right mind would pursue a baseless claim under the threat of having to pay the other side’s significant attorney’s fees and costs? The answer is, Nobody.
The uninformed and misinformed say that we should have a system where the loser pays. Not only do we have such a system, but also one in which the loser pays if the victory is not by a wide enough margin. Imagine your favorite sports team winning the game but getting a loss in the win-loss column because the win did not exceed the oddsmakers’ predictions.
Think about it.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Contact us at 866-785-GALE or by email to learn your legal rights.