Doctor Juris (granite) wrote in tortreform,
Doctor Juris

The Myth of the Frivolous Lawsuit - Part Two

One of the promises made by “tort reformers” is that the legislation they propose will put an end to “frivolous lawsuits”. They say that the court system is overwhelmed with lawsuits that have no merit, and that we need more barriers to prevent people from filing lawsuits.

What tort reformers don’t tell you is that the legal system already has three safety mechanism in place to prevent, dismiss, and correct frivolous lawsuits. The second mechanism, the Summary Judgment, is how frivolous cases are dismissed.


Tort reformers say that the courts are overwhelmed with “frivolous lawsuits” – lawsuits that have no legal basis, or are so petty as to not be worth the time of the court system. They say that to protect the justice system, we need to make it harder for individuals to file lawsuits.

But what if instead of putting barriers up that could prevent legitimate lawsuits, 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 filers of frivolous lawsuits to pay the attorney fees of the other side? This tool not only exists, but has been in use in America since 1902; it’s called the Summary Judgment.

The Bills of Exchange Act of 1855 in England first put into place what is now known as the summary judgment. America began using summary judgments in the District of Columbia in 1902, and the Federal court system formally implemented the summary judgment as it is known today in 1937.

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 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 given a citation from a police officer for running a red light. Mr. Smith decides to sue Mr. Jones for mental anguish.

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: Pictures of the accident scene, affidavits from the witnesses, an affidavit from the police officer, an affidavit from Mr. Jones, and a copy of the police report. All of the affidavits and the police report say that Mr. Smith ran 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.

The requirements for summary judgment vary from state to state, but in general, you need to show the court two things:

1: That the facts are clearly on your side. In Texas, for example, you have to show that “reasonable and fair minded people” cannot possibly come to different conclusions about what the evidence shows. If reasonable and fair minded people could come to different conclusions about the facts of the case, then summary judgment shouldn’t be granted.

2: That the law is clearly on your side. A common use of the summary judgment is to dispose of lawsuits where the statute of limitations has passed. Many states have a four-year statute of limitations for breach of contract. So, if you bought a car in 1995 and tried to sue the dealer for breach of contract in 2000, you wouldn’t be able to win – the statute of limitations would bar you from winning, and the judge would grant the car dealer’s motion for summary judgment.

Summary judgments have disposed of frivolous lawsuits for decades. They allow a defendant in a frivolous lawsuit to get out of the case quickly and without the expense of a full-fledged trial. Often, the defendants are even awarded their attorney’s fees for preparation of the motion for summary judgment.

The bottom line is that because of the summary judgment, very few “frivolous lawsuits” ever make it to trial. It could even be argued that any case that makes it past summary judgment can’t be a frivolous lawsuit; a judge – not a “runaway jury” – decided that the case had enough merit to present to a jury.

Tort reformers want to make it hard for you to file a lawsuit, harder for you to win a lawsuit, and impossible for you to collect a meaningful amount of money in a case involving serious or permanent injury. To accomplish these goals, they claim that frivolous lawsuits and runaway juries are destroying the justice system. However, tort reformers don’t talk about how summary judgments have been effectively used for over 100 years to dispose of thousands of frivolous lawsuits.

The next time someone tries to persuade you that we need more barriers to filing lawsuits, ask them why they don’t think the summary judgment is getting the job done.
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