Use rules aggressively to curb frivolous suits

By Frank Knapp, Jr.–Guest Columnist, The State

July 16, 2004

No issue in the discussion of tort reform raises the blood pressure of a small businessperson and can potentially affect more small businesses than frivolous lawsuits. The thought, or reality, of being the subject of a frivolous civil action — which costs businesses in terms of legal fees, lost time from work and emotional turmoil — evokes a justified negative emotional response.

Unfortunately, no data currently exist on the extent of the problem in our state. The business community believes that frivolous lawsuits are common, while those within the legal profession say the number is quite small. Regardless of who is correct, all agree that any frivolous lawsuit is unwanted.

The common misconception about frivolous lawsuits is that there is nothing the defendant can do. The result is a public clamor for laws to outlaw them and order judges to punish the plaintiffs and lawyers who bring them.

Well, there is good news: Frivolous lawsuits are already against the law and the rules of the court. Judges already have the power to punish plaintiffs and lawyers who bring these offending suits. Defendants of frivolous lawsuits can get their legal costs reimbursed and may even receive punitive damages and sanctions brought against the opposing attorney.

So why does the mention of frivolous lawsuits still enrage the public? Because so few people know how to fight back against lawsuits that are truly frivolous. While some attorneys may ask a judge to rule that a lawsuit was frivolous, there is no requirement that they tell their clients about this option.

The fear, and possibly the reality, is that attorneys may be reluctant to ask a judge for a frivolous action ruling because of some misplaced fraternal allegiance. Whatever the reasons, the bottom line is that the public has been kept in the dark, and the feeling of helplessness generates collective outrage.

This year, the S.C. Small Business Chamber of Commerce sought to empower the public with the knowledge of how to fight frivolous lawsuits. We wanted to make sure that both the plaintiffs and defendants in all civil actions knew about Rule 11 and the Civil Proceedings Sanctions Act, the two measures that can be raised during and after a civil trial when the defendant believes the action was frivolous.

As a result, S.C. Court Administration, with the approval of Chief Justice Jean Toal, has begun the public education process. On the new civil action coversheet, which is served on every defendant, information about Rule 11 and the S.C. Frivolous Civil Proceedings Sanctions Act is clearly provided.

But simply empowering small businesses and the public with the knowledge of how to fight back against frivolous lawsuits is not enough. With this knowledge comes the responsibility to use it.

If you are the subject of a lawsuit that you believe to be frivolous, then you must let the plaintiff know he is in for a fight and that you intend to ask the judge for a frivolous lawsuit ruling. Insurance companies must be told not to settle such suits. Paying off a party who brings a frivolous suit just provides incentive for the next one.

The progress on this issue doesn’t mean that the law shouldn’t be changed to strengthen the sanctions against frivolous lawsuits. What it does mean is that it is up to each of us to make the decision to fight back if faced with this situation. No legislation can make a judge find a civil action to be frivolous. That process must start with us.

Mr. Knapp is president and CEO of the S.C. Small Business Chamber of Commerce,

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