Academic journal article The Review of Litigation

The Frivolous Litigation Narrative: Web of Deception or Cautionary Tale?

Academic journal article The Review of Litigation

The Frivolous Litigation Narrative: Web of Deception or Cautionary Tale?

Article excerpt

INTRODUCTION.........711

I. THE TRUTH OF THE FRIVOLOUS LAWSUIT NARRATIVE IN QUI TAM LITIGATION...........715

A. Why Qui Tam Litigation?.......715

B. Kwok's Analysis........716

C. Analysis of Kwok's Empirical Methodology........718

D. Additional Empirical Support.....719

II. THE TRUTH OF THE FRIVOLOUS LAWSUIT NARRATIVE IN INTELLECTUAL PROPERTY LITIGATION........725

III. THE TRUTH OF THE FRIVOLOUS LAWSUIT NARRATIVE IN MEDICAL MALPRACTICE LITIGATION.......730

IV. SIGNIFICANCE OF THE EMPIRICAL FINDINGS......733

A. Anti-Plai_72.tiff Rhetoric.........734

B. Holdings Hostile to Plai_72.tiffs ' Attorneys and Some Impacts of Same......735

C. Impact on Jury Awards.......738

D. Policy Implications and Potential Strategies...741

CONCLUSION.....741

INTRODUCTION

Despite the sweeping success of second-wave tort reform advocates1 in modifying the tort system in favor of doctors and corporations,2 the story told by many legal reformists today continues to be that frivolous lawsuits plague the American justice system and threaten American industry.3 For example, Lisa Rickard, president of the Institute for Legal Reform of the U.S. Chamber of Commerce,4 commented in September 2015 after the Lawsuit Abuse Reduction Act of 2015 (LARA)5 passed the House that, due to congressional watering down of 1993 federal legislation designed to eliminate frivolous litigation, "such claims have led to increased insurance costs, job losses, and an almost total failure of attorney accountability."6

By way of evaluating the narrative that frivolous suits are, in the aggregate, a scourge on the system of law in America-which this note refers to interchangeably as the "frivolous litigation narrative" or the "frivolous lawsuit narrative,"-this note will review the available empirical data on frivolous lawsuits in the United States. Although empirical studies on the frivolousness of lawsuits are relatively scarce,7 sufficient literature exists to conclude that the myth is overblown at best8 and outright false at worst.9 In order to establish a logically coherent method of analysis, this note will organize the empirical analyses by type of litigation. Empirical analyses from disparate types of lawsuits will be unpacked in the following order: (1) qui tam litigation under the False Claims Act; (2) intellectual property (IP) litigation; and (3) medical malpractice litigation. Following the review of empirical literature on these three types of litigation, this note will discuss the implications of the literature on current issues in the practice of law and will conclude with closing remarks.

Prior to digging into the empirical literature on the existence of frivolous lawsuits in the context of these disparate types of litigation, however, it will prove useful to define the term "frivolous lawsuit" and establish some limits on the analysis undertaken throughout the rest of this note. Recognizing the difficulty in defining the term "frivolous lawsuit," which has been underscored by commentators,10 this note adopts the definition most commonly used-at least as a matter of implication-by academics addressing the phenomenon of frivolous suits: suits completely lacking in legal merit.11

In order to limit the scope of this note, since the following sections will engage primarily in meta-analysis, the analysis in this note will necessarily be limited by some of the same constraints ide_72.tified by commentators. Chief among these constraints is the limitation of using either judicial or governmental determinations of frivolousness, as reflected by the imposition of sanctions in a given case or dismissal of a particular case-on the part of either judges or the Department of Justice (DOJ) in the context of qui tam litigation, respectively-as one of the primary metrics for assessing the true merits of cases.12 Two other limitations imposed by commentators are (1) the use of "win" rates13 and (2) the use of quantity of lawsuits filed in order to determine the frequency of frivolous filings in different types of litigation. …

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