Frivolous Lawsuits

J. Bradley Klepper
Attorney at Law

Let’s get this out of the way up front….nobody likes lawyers.

I get that. I really do. I am a lawyer myself and I don’t even like lawyers. Shoot, there are days I don’t even like myself. Which, the more I think about it, is something I should probably discuss with a professional….
Regardless, there is one big reason why folks don’t like lawyers. OK….I lied. There are actually several big reasons why folks don’t like lawyers but ONE of them is that they file frivolous lawsuits.

Which they are not supposed to do.

As background, lawyers are officers of the court and are required to follow certain rules when they file lawsuits. Of course, if a lawyer violates these rules the suit can be dismissed and the court may sanction the lawyer. A lawyer can also be disciplined if they violate jurisdictions ethics rules relating to the filing of lawsuits.

While court procedures and ethics rules may vary slightly between jurisdictions they all basically same the same thing. All lawyers are prohibited from filing “frivolous” lawsuits or suites otherwise without merit.

In other words, and as my Grandfather would say, lawyers, are not supposed to file lawsuits that are full of “horsesh*t.” I never understood what Grandad had against bulls but whatever…..

So if we know lawyers are not supposed to file these lawsuits why do we seem to see so many of them?

The answer is that lawyers are permitted to file lawsuits where they know enough facts to believe that the eventual proof will support the allegations contained in the lawsuit. This is done without knowing all the facts at the time the lawsuit is filed.

In addition to lawsuits being free from “horsesh*t” the lawyer is also required to cite the relevant settled legal theory or state a new one the lawyer believes should be adopted by the court. A good example of a “new legal theory” would include the school segregation arguments made by Thurgood Marshall in the 1954 U.S. Supreme Court case of Brown v. Board of Education and the same-sex arguments made in the Obergefell decision of 2015.

Federal lawsuits are governed by Rule 11 of the Federal Rules of Civil Procedure, of which most states have adopted some version, which states that the new legal theory is “warranted by existing law or by nonfrivolous argument … or the establishment of the new law.”

This means that if a lawyer files a lawsuit based on a theory so far-fetched that no court could be expected to accept it then that lawyer could be in violation of rule 11 or its state equivalent. If this occurs that lawyer could be sanctioned by the applicable state bar for violation of ethics rules.

In light of all of the above, why don’t we see more lawyers getting fined or disciplined? The answer is that it is a fine line that separates a “frivolous” lawsuit from one that might be “meritless” but argues for a new legal theory. So while judges, the media, and others may criticize a suit a frivolous and call for sanctions or other disciplinary action the standard is high for imposing such sanctions. In fact, the standard of proof required in most jurisdictions for finding such a violation is clear and convincing evidence. A high bar indeed.

At the end of the day, whether a lawyer violated the rules of professional conduct will be determined by each stated disciplinary agency on a case by case basis.

But that does not mean we have to like lawyers…..

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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