autumn’s first geese
crapping on people
fly on
autumn wind–
red flowers she wanted
to pick
lying belly-up
yet still singing…
autumn cicada
by dagosan:
last day of summer –
the old cat naps
in the sunny window
[Sept. 21, 2004]
neither frivolous nor meritless
Every one (look here, here, here, here, there and there, etc.) is talking about “frivolous” lawsuits, but they seriously need to define the term. As we have noted often (e.g., this post, and Comments here and here): a claim can be meritless but not frivolous. (See Model Rule 3.1,; Fed. Rule 11; law.com definition; and MetLife case) [with ethicalEsq retired, we sure could use another weblawger spelling out the issues!]
The New York Archdiocese has a good point: parents shouldn’t sue over their children’s grades and
discipline issues (except physical or sexual abuse, of course) (via Overlawyered.com; see upset)
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
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