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

By Darling, Michael | The Review of Litigation, Winter 2018 | Go to article overview

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


Darling, Michael, The Review of Litigation


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.