Rules 11 and 72 protect against frivolous lawsuits and legal actions

Every time proponents of tort reform speak they always talk about frivolous lawsuits that are driving up the cost of business liability insurance.  They have been so consistent with that message over the years that it is engrained in the minds of the public and legislators.  Small business owners in particular are concerned about having a “frivolous” lawsuit brought against them.

That is why way back in September of 2003 I made a presentation to the Tort Reform Ad Hoc Study Committee of the SC House Judiciary Committee.  At that time I said that we didn’t know how many “frivolous?” lawsuits there are because that type of data is not recorded.

I said that what was needed to address either the reality or perception of a frivolous lawsuit was for the lawyers and judges to be more willing to request and evoke Rule 11, the rule giving the courts the power to cite and punish lawyers and plaintiffs for bringing frivolous lawsuits.  In addition, I said, that defendants, including small business owners, needed to be made aware of Rule 11 so that they can ask their lawyer to request it if they feel that a lawsuit is frivolous.

The following year after a major tort reform battle in the Legislature ended, the only reform that was enacted was the Small Business Chamber’s request for notification about Rule 11.  Our newsletter at that time stated, “As a result of our direct efforts, the great cooperation of the SC Court Administration and the approval of Chief Justice Jean Toal, both defendants and plaintiffs in a civil suit will now automatically be made aware of Rule 11 and the South Carolina Frivolous Civil Proceedings Act.”

So why review the history on this now?  Because an identical rule, 72 of the Administrative Law Court, was evoked by Judge Ralph Anderson III on Monday of this week and will cost the plaintiffs $9,300 in legal fees for finally what the defendant considered a frivolous motion to delay a proceeding.

There is a defense against frivolous lawsuits and related legal motions and defenses.  If the proponents of tort reform would spend as much effort on educating the public about Rules 11 and 72 that are weapons against frivolous actions, more small business owners would be armed with knowledge that will address the issue, real or perceived.


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