One point that I think needs to be made is that no tort reform proposal has been made that would actually stop frivolous lawsuits. One of our Constitutional rights is to sue anyone we want, for anything we want. No matter how frivolous our suit may be. Hell, an attorney could even bring a class action suit against Santa Claus on behalf of every person who didn't get a pony as a kid.
So how could we stop suits from being filed? Would we have court clerks evaluate every lawsuit to determine if it should be filed? That won't happen for two reasons. First, nonlawyers aren't allowed to give legal advice: It's called unauthorized practice of law, and it's illegal. Second, it would be unconstitutional - and scary - to have a nonelected official be able to pick and choose which lawsuits he or she would allow to be filed. What if the clerk refused to let lawsuits against friends or family be filed? The potential for abuse is too great. Ultimately, there's no way to prevent people from filing whatever lawsuit they wanted to - no matter how frivolous it may be.
For example, take a look at this pdf I created as an example of a frivolous lawsuit. Change the names of the parties and the name of the court, and you could file this in any court in America:
TO THE HONORABLE JUDGE OF SAID COURT:NOW COMES Greedy Plaintiff, complaining of Deep Pocket, and would show unto the Court as follows:
1: Greedy Plaintiff is envious of anyone with more money than him. He has nothing better to do than file frivolous and vexatious lawsuits to try and force rich Defendants into paying him a settlement for nuisance value.
2: Deep Pocket has committed no wrong against Greedy Plaintiff. Greedy Plaintiff’s suit is brought solely to vex, harass, badger, pester, annoy, irritate, terrorize, blackmail, extort, anger, worry, bullyrag, bother, bedevil, and beleaguer Deep Pocket.
3: Upon information and belief, this is a frivolous and vexatious lawsuit, with no basis in law or fact, and is brought solely because Deep Pocket has more money than Plaintiff.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Greedy Plaintiff, respectfully prays that Deep Pocket be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for Greedy Plaintiff against Deep Pocket for economic, noneconomic, and punitive damages in the amount of one hundred billion dollars ($100,000,000,000.00) and such other and further relief to which the Plaintiff may be entitled at law or in equity.
Once you filed this frivolous lawsuit, you could have the defendant served with a copy of it, and the defendant would have about 30 days to hire a lawyer and file an answer. If the defendant ignored the suit, you could obtain a default judgment - winning by default because the defendant didn't show up to contest it.
Sure, if the defendant answered, the suit would be dismissed. You'd probably even be ordered to pay the defendant's legal fees. And in some states, you could even be charged with a crime for knowingly filing a frivolous lawsuit.
But all of those things happen after a defendant is forced to spend time and money to respond to a frivolous lawsuit.
Make no mistake - tort reform will not and can not stop frivolous lawsuits. All it will do and can do is protect corporations from being held accountable when they cause injuries.
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