It’s The Law: Frivolous lawsuits, continued

Last month, I wrote about the problems witnesses pose, for both lawyers and clients. I spoke of the construction manager at Scotts Valley High School whose false testimony forced my client to sue the school district to get paid. In response, a letter writer suggested that my client should not have pursued the debt owed to him, apparently for the sole reason that the debtor was a school. This seems a dicey way for schools to balance their budgets — to refuse to pay their debts. I am curious what our letter writer thinks will happen when the district stops paying Pacific Gas and Electric Co. or fails to issue paychecks to its teachers.
Like it or not, when negotiation fails to resolve an impasse, litigation is the method devised by society for resolving that impasse. Last I checked, you can’t hire Guido, he of the thick neck, to wring a neck to get paid.
Our letter writer’s response is akin to the contingent that believes that virtually all lawsuits are frivolous and clogging the courts. Truth be told, some lawyers are indeed slovenly creatures existing in the bowels of the earth and surfacing only to file ridiculous lawsuits.
Although it wasn’t filed by a lawyer, one of the most ridiculous suits occurred about 10 years ago in San Jose. You might remember the young man who got into a minor traffic accident with a woman, grabbed her little bichon frise and threw it into oncoming traffic. The dog was killed, and the thrower was sent to jail for three years. If that behavior wasn’t bizarre enough, the dog thrower later sued the dog owner, claiming that the incident caused him emotional distress and post-traumatic stress.
Right in Surf City, I know of a flooring contractor who installed a few thousand dollars of flooring in a home. Some of the flooring failed. Even though it was determined that a third party had ruined the floor, the flooring contractor was still sued. The owner’s lawyer was brazen enough to demand $1,000,000,000 from the innocent contractor. You read the right number of zeroes: $1 billion, because a few hundred square feet of flooring warped.
Crazy cases make the paper and give the impression that we are inundated with worthless litigation. I have been asked many times how cases like the above can be allowed. The simple answer is that they aren’t allowed. Whereas anyone can sue anyone for anything any time, that doesn’t mean they will win the lawsuit. And, in fact, absurd lawsuits like the above are thrown out routinely by judges long before they get to trial.
I admit that I encounter too many cases that have little or no worth, but the usual case is like my contractor’s at the high school. He performed his contract flawlessly and expected to be paid the agreed amount. It wasn’t until the other side adamantly refused to perform its end of the contract that litigation ensued.
Many of us likely remember our mothers’ platitude, “It takes two to argue.” I assure you that it isn’t true. It only takes one to argue. I have found time and again that reasonable people can and do work things out. It is when just one person holds to an unreasonable position, as in the case of the construction manager at the high school, that arguments escalate and go to trial.
A fascinating paper from the University of Michigan Health Study found that lawsuits dropped by more than a third when doctors openly communicated with their patients about mistakes and apologized rather than taking a hard line. Of the lawsuits that were filed following the apology, the costs for liability, including compensation to patients and lawyers, fell by 60 percent. This study is by no means alone. Other studies have shown that simply trying to get along with the other side following a mistake greatly reduces the chance of a lawsuit.
But, you cry, aren’t the frivolous lawsuits still clogging the courts? I could find no statistics on “frivolous” lawsuits, but the majority of studies show a dramatic drop in lawsuits over the past two decades. For example, federal personal injury trials, according to a 2004 Bush Administration report, were down nearly 80 percent since 1985. There will always be surges of certain types of lawsuits, such as bankruptcies and security fraud in recent years, but the overall climate is one of greatly reduced litigation.
To keep us from descending to the ways of Guido, we must have a system to resolve civil disputes. While litigation is the final method if parties simply cannot agree, it does all of us well to remember that a simple apology has tremendous power.
Who could have guessed that Rodney King’s ironic but plaintive plea, “Can we all get along? Let’s try to work it out,” would turn out to be more insightful than my mother’s “It takes two to argue.”
Gary Redenbacher of Scotts Valley is an attorney in private practice. He can be reached at [email protected].