As a Florida personal injury lawyer, I am occasionally asked about frivolous lawsuits.  I am asked if my clients regularly bring them, and how we know when a claim is frivolous.

In my experience, there are really two answers to this question — one legal, and one not.

Under Florida law, the determination of whether an action is frivolous is made by a judge.  An action is frivolous only if a judge finds that at the time the lawsuit was filed the claim was not supported by the material facts necessary to bring a claim, or was not supported by the application of then-existing law.  A claim may not be frivolous even if it is not supported by then-existing law, as long as the party has a good faith belief that he has a reasonable expectation of success in making new law.

In my experience (having practiced law for 17 years as an Orlando personal injury lawyer of the time of this writing), I have never been involved in any case, nor known any colleague or lawyer/friend of mine to be involved in a case, where a judge has found that a claim was frivolous.)  In the real world practice of personal injury law, most lawyers have no incentive to file frivolous lawsuits.  The risk of doing a lot of work and never getting paid — or worse, in having to pay penalties for filing a frivolous lawsuit — is just not worth it to the vast majority of lawyers.

Most often I hear the term “frivolous lawsuit” when I am dealing with a defendant in a lawsuit, or reading something published by a corporation or in the mainstream media.  It is very rare that I have ever encountered a defendant in one of my lawsuits who didn’t think that my client’s claim against him was frivolous.  This includes many defendants in rear-end accidents, who were clearly at fault for the accident.  Nevertheless, almost universally, these defendants, and most others regardless of the egregiousness of the defendants’ negligence, feel that my clients’ claims are frivolous and will freely use that word to describe my clients’ claims.

In the grander scheme of things, in my opinion big corporations and insurance companies use the term “frivolous lawsuit” often, and as a propaganda tool.  First, they want to create the impression that these baseless claims are wide-spread and a societal problem.  Unfortunately, there is just no evidence to support this claim — from any source.  Sure, corporations can drag out stories of one or two outrageous or outlandish claims brought be crackpots, but these bizarre stories are by far the exception, rather than the rule.

In my opinion, the corporate community’s additional intent is to try to make people feel bad about bringing claims, in general — even claims with merit.  If folks bringing valid claims fear that they may be lumped in with those bad folks who are bringing all of those “frivolous” claims, then perhaps the people with valid claims will just decide not to come forward at all.  This hesitancy to bring valid, compensable claims obviously saves these corporations bundles of money.  This being the case, why wouldn’t the corporate community continually complain about “frivolous” lawsuits.

It seems to me that the easiest, most simple way to determine whether a claim is frivolous is to ask which side of a dispute the person is on…

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