f/k/a archives . . . real opinions & real haiku

September 21, 2004

summery judgment granted

Filed under: pre-06-2006 — David Giacalone @ 12:04 pm


autumn’s first geese
crapping on people
fly on

 




fly south neg

 


autumn wind–
red flowers she wanted
to pick

 








lying belly-up
yet still singing…
autumn cicada


 

 











last day of summer –

the old cat naps

in the sunny window         

                                        [Sept. 21, 2004] 

 







      neither frivolous nor meritless  leaf pile  

one-breath pundit





2 Comments

  1. David, as soon as I can find the leisure (ha!), I’ll try to take on your call to address the meaning of “frivolous”. You are right to say that there are plenty of “meritless” cases that do not meet any established definition of having been “frivolous,” and I tend to favor maintaining a fairly strict definition of frivolousness for the sake of encouraging diligent advocacy of difficult, but genuinely colorable, causes. I seem to have slipped into imprecision in my own last post relating to this (linked by you today), but in my first run at the Kerry-Edwards medical malpractice proposals (here), I wrote:

    “The proposal for barring attorneys who file multiple ‘frivolous’ suits is likely to prove illusory [as a means of reducing medical malpractice filings]. ‘Frivolous’ is a high standard, generally requiring a showing that no reasonable attorney would ever have believed that the claim had merit. If a pre-screening requirement is also in place, the allegedly frivolous advocate will likely be able to escape by the simple expedient of having ‘reasonably relied’ on the opinion of the reviewing doctor.” (Emphasis added.)

    This is an altogether worthy topic — what does “frivolous” mean, what should “frivolous” mean when applied to lawyers’ assertions of claims and legal positions, and which of the possible definitions is being used by the participants in any given argument — if only I can find the time and resources to address it. Consider it added to my “to do” list.

    Comment by George Wallace — September 21, 2004 @ 8:01 pm

  2. Thanks for your contribution, George, and your promise to follow-up (yes, I shall remind you as needed).  You’ve gotten to the crux of the problem — how do we separate claims that so bad/weak they should never have been made from those that aren’t bad enough to ban prospectively or punish retrospectively?  Perhaps we’ll need more than one adjective.
    I agree with your assessment of the Kerry-Edwards proposal: it is unlikely to filter out many additional cases.   Now, get your thinking cap on.
     

    Comment by David Giacalone — September 21, 2004 @ 10:28 pm

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