by R. Scott Costantino
Our profession is under unprecedented attack. Not a day goes by that attorneys are not ridiculed either in newspaper editorial pages or political speeches. The average person seems to believe that every time someone files a lawsuit it is yet another frivolous attempt to extort money. I have represented numerous clients who are almost apologetic when they hire a lawyer as they inherently feel they are doing something unpopular and un-American. These people often tell me that they never in their wildest dreams thought they would ever file a lawsuit. This is true of course until an unfortunate incident touches their lives.
A frivolous lawsuit can be defined as one without merit, used only as a means to leverage money or to harass or annoy a target. No one would debate that professionals should not advance a frivolous claim or defense. In my 14 years of practice both as a plaintiff and defense lawyer, I have only seen a handful of cases that did not have some arguable merit. Of course, I have read or heard of cases throughout Florida and the nation which seem, on the surface, to at least push the envelope. Yet, the vast majority of cases I have encountered involved meritorious disagreements. Just because a lawsuit can only have one winner, it does not automatically follow that the loser must have taken a frivolous position. Litigation is a means we have as Americans to resolve our disputes. Our forefathers wanted it this way.
Why do people litigate in America? I say it is because we are Americans. We have a Constitution and live in a lawful society. As such, we have rights and laws to protect us. We also have prescribed remedies when our rights are violated or when we are harmed by the unlawful conduct of others. We litigate because we live in a free society. Would any reasonable person want to lose the right to litigate if necessary?
Are there too may lawsuits? This is an extremely difficult question to answer. Too many as compared to what, the number of lawsuits in Iraq or North Korea? It is extremely difficult to draw a bright line for targeting which suits have merit and which do not. It is my personal opinion that our trial and appellate judges do an excellent job of dispensing with frivolous suits on a case by case basis. I also believe that juries for the most part take their responsibilities seriously. Sure, every once in a while, the result of a lawsuit will defy logic. However, the system works because most of these results are reduced or reversed on appeal. Unfortunately, when the system works, it gets little media coverage.
We as attorneys are professionals who help people who are in need. This is true whether we represent a Fortune 500 company or the weakest in our society. In America, the two are created equal. Without the legal community, our society would have a difficult time functioning. Remember this the next time you hear a lawyer joke.
It is true that we as attorneys have been our own worst enemies in many ways. One bad headline can wipe out a lot of the good that hard working honest professionals achieve every day. Each of us should strive to uphold the oath of office we took when we became attorneys. We should also take pride in what we do.