By Julie I. Fershtman, Attorney at Law
“CAN I BE SUED IF I DO THIS . . .?”
People ask me this question all the time, hoping that some special action or precaution will forever insulate them from the burden, aggravation, and expense of a lawsuit. Unfortunately, despite every precaution we take, we live in a society where a person or businesses can be sued for virtually anything. Right or wrong, the fact is that anyone can file a lawsuit against you. Merely because someone has sued you, however, does not mean the case has merit. This article discusses frivolous lawsuits and shares ideas about how to protect yourself and what to do if you are targeted with one.
WHAT IS A “FRIVOLOUS LAWSUIT”?
A weak lawsuit is not necessarily a “frivolous” one. Frivolous lawsuits are typically cases that have no legitimate factual or legal support and are not even based on a good faith argument for the extension or reversal of existing law. Frivolous lawsuits are sometimes brought for an improper purpose, such as to harass someone. Examples of lawsuits deemed frivolous are those sometimes brought by people against the government claiming that the government has no legal authority to assess and collect taxes. “Frivolous” is not always used to describe baseless lawsuits. The term “frivolous” is occasionally used to describe equally baseless defenses that are sometimes asserted in defense of valid litigation.
FIGHTING BACK AGAINST FRIVOLOUS CASES
If you have become the target of a lawsuit that you believe is frivolous, you will need to defend yourself effectively. Never assume that a judge will, on his or her own, discover the weaknesses of a case or defense. Consider taking several possible actions. Your options will depend on the applicable law, your litigation budget, and the nature of the case. Here are a few:
Ask the court to dismiss the case. At the appropriate time, you can ask the judge to dismiss the case completely before it ever proceeds to trial. Lawyers call these requests “motions for summary judgment.” In bringing these motions, lawyers will very carefully organize each of the claims in the lawsuit and compare them to the facts and the applicable law. Through this analysis, the motion will explain to the court in writing why the case has no merit and should be dismissed outright.
Demand that sanctions be imposed. Under state and federal court rules, judges have discretion to order the party who brought a frivolous case (or defense) against you and/or that party’s lawyer to pay financial penalties that are sometimes referred to as “sanctions.” In my experience, judges rarely do this, but a few will. Consider making an appropriate request and letting the judge decide.
Seek to recover costs, where allowed by law. Lawyers know that applicable law might allow for taxation of costs through which the winning party can, at a minimum, recover certain costs and expenses from the losing party. The financial benefit might be minimal, since taxable costs tend to be limited in scope to deposition transcript costs, filing fees, or subpoena fees. Nevertheless, you might have the satisfaction of imposing extra expense on the one who wrongly sued you.
Bring a suit or claim for “abuse of process.” If you believe that a lawsuit was brought against you for an improper purpose, you might have a claim of “abuse of process” against the one who sued you. Your lawyer can discuss this with you.
Sue for “malicious prosecution” after you defeat the frivolous case. After you have successfully defeated a frivolous case that was brought against you, you might have a basis to sue the one who brought that lawsuit under the theory of “malicious prosecution.” To bring a valid case for malicious prosecution, however, usually requires proof that the suit you defeated was brought with malice and had no probable cause.
To protect yourself against lawsuits of any kind – frivolous or otherwise – you can consider the following:
Liability insurance will not prevent lawsuits from being brought against you, and insurance policies cannot protect you against every type of lawsuit. Nevertheless, if your insurance policy provides coverage for a claim or lawsuit against you, the insurer will hire and pay a lawyer to defend you. This would spare you the out-of-pocket expense of hiring a lawyer.
As I have written for many years, well-written contracts can help prevent disputes and lawsuits. Contracts in the equine industry can include sales agency agreements, sales contracts, training contracts, boarding contracts, and liability waivers/releases. Effective contracts can also include “attorney fee” clauses in which the other party agrees to pay your legal fees if a dispute arises (where allowed by law).
This article does not constitute legal advice.
When questions arise based on specific situations, direct them to a knowledgeable attorney.