Monday, December 5, 2011

"Frivolous" Lawsuits Are Good For America

The national news media reported last week on a lawsuit filed by a kidnapper against his victims claiming that they breached an oral contract to hide him from police. (A tip of the hat to ALSB member Marsha Hass for sharing the report). Predictably, bloggers and commentators have added this example to their rhetoric of a "justice system out of control" and "costing taxpayers money" and etc.

In this post, I advocate that this story, rather than supporting the notion of an out of control civil justice system,  is best understood as an example of a legal system working exactly as it should for the greater benefit of society.

The civil justice system already boasts a very effective gatekeeper system through the role of lawyers. Lawyers do not take and file frivolous lawsuits for two very good reasons.  First, there are legal sanctions for doing so. Second, and more practically, lawyers working for contingent fees only file lawsuits that are likely to recover damages. Lawyers do not file suit for sport or enjoyment. So, every knowledgeable reader of these recent news stories instinctively knew what was not reported in most of the edited AP service reports of the kidnapper's lawsuit - that this suit was filed by the kidnapper himself and that no lawyer represents him. The local paper printed a more complete story.

Dimmick (the kidnapper) personally — in longhand — wrote the document, which was filed Oct. 21 in Shawnee County District Court.

If one is inclined to bypass legal counsel and file suit anyway, there is another efficient and inexpensive mechanism for ejecting a frivolous lawsuit - a motion to dismiss upon which a judge will rule.  In the kidnapper's case, the motion has been filed and a ruling is expected shortly. The lawsuit has been pending for a little over 30 days. A judge will review it carefully, determine that it is legally insufficient and dismiss it from further consideration by the legal system. Case closed.

Far from evidencing a legal system out of control, this kidnapper's lawsuit evidences a mature, competent, orderly, civilized and effective system of review of grievances and resolution of disputes. Should there be an additional gatekeeper system to review all lawsuits filed "pro se" prior to a judge's review at a motion to dismiss? Or, perhaps a pre-review of the pre-filing review preceding the motion to dismiss review? Where would it end?

Readers from my generation will remember the old "People's Court" TV show with Judge Wapner and the commentator Doug Llewlyn who ended every episode with the encouragement that if you were wronged, "Don't take the law into your own hands: you take 'em to court."  Indeed, isn't this culture of resolving disputes peacefully a critical cornerstone of a mature, functional democracy?  If you could not bring your disputes, no matter how delusionally based, to a forum for a competent and fair resolution, what would be the alternatives?

In the Spring of 2010, during a span of a few weeks, China was rocked by several instances of senseless and gruesome killings of children. In one incident, several toddlers were beaten to death by a man wielding a hammer and who ultimately set himself on fire while holding two children.  In another instance, 8 schoolchildren were shot to death.  As the nation and the world understandably searched for the cause behind such horrific acts, the NY Times reported:

[A]verage citizens still wondered what in their society could generate such madness. Online, many of them focused on problems — the growing rich-poor gap or the helplessness of average people in the face of power — that are a backdrop to everyday life.

One theme echoed in some Internet postings was the feeling by many Chinese citizens that they had little power in the face of authority, and few ways to right wrongs.

I am greatly comforted by the thought that, a desperate and perhaps mentally ill person who feels wronged by American society, or American government or his or her neighbor, will file a frivolous lawsuit in the courthouse rather than climb into a clocktower with an assault rifle. Every time there is a report about another "frivolous" lawsuit, especially one that hints of a fragile mental state, I draw a deep sigh of relief for the tragedy avoided. If journalists would develop the same attitude, then perhaps journalistic ethics will mitigate against publicizing the filing of these fringe, certain-to-be-dismissed lawsuits the same way they mitigate against reporting about every troubled soul who walks the streets of American cities proclaiming that the world is about to end.

Below is a video report of the kidnapper's lawsuit. The reporter explains that the kidnapper is not represented by a lawyer only very near the end of the segment. Consistent with other news reports, it is apparently more important to report that the kidnapper ate Cheetos and watched "Patch Adams" while holding the victims hostage.

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