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Thursday, December 10, 2009

Lawsuit Abuse vs. Due Process

I recently received one of those blast e-mails from a national chamber of commerce about the latest in meritless lawsuits.  It got me thinking -- again -- about how to balance the rights of plaintiffs to have their day in court against the rights of putative defendants who arguably should not be burdened with any lawsuit.    The costs of defending a purely nonsensical suit (drafting a motion to dismiss or summary judgment) can still be substantial and the defendants faced with these suits are justified in claiming "abuse."   However, I fail to see how barring altogether certain classes of suits can be done without also barring or unfairly hindering some very legitimate lawsuits, or without having some of those very legitimate lawsuits characterized as "abusive."

I am certain that, several decades ago, certain cases alleging a link between absestos and cancer were considered abusive.

We need to recognize the due process rights of all litigants.   The meritless cases can be addressed by the courts, which may want to consider entertaining more motions for sanctions (such as under Federal Rule of Civil Procedure Rule 11) against the parties who bring such actions.    While many parties are accorded deference to their right to have their say, perhaps some judges need to get more aggressive at the initial stages of a lawsuit, such as at the calendar call and before the first formal hearing, and "knock some heads together" when they (or their clerks or staff attorneys) see that there is a pretty baseless case or claim in front of them.

Another problem with the meritless lawsuits is that they do detract from, and unfairly tarnish, the legitimate suits.   I wonder if every time a nonsense suit gets heard, the real victim / loser is the next credible case for which the "bar" of reasonableness gets raised as a result of the baseless suit or claim which preceded it.  

However, the various chambers of commerce seem too eager to just use a broad brush and block all manner of suits.   I am sure that there are many "real" suits that they would like to have "go away."   Readers, be suspicious of the siren calls for tort reform.

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