Teachers, businessmen, physicians, and police officers are made accountable for their actions by the threat of lawsuits, fines or job loss. So my question is simple: why haven't we created a system that holds lawyers accountable for bringing suits that lack merit? Malpractice trials find the defendant liable approximately 30% of the time. That means 70% of the time, the physician wins. As a physician, if I were to perform appendectomies and only 30% of my patients turned out to have a diseased appendix, I would lose my license! Yet if you achieve a similar result in private practice as a trial lawyer, you will probably be free to go on practicing with no penalty whatsoever.
It seems to me that the answer might be to create a system that simply asks the jury to decide whether a civil lawsuit in which the defendant was found innocent of wrongdoing should be deemed "frivolous". If it were found so, there would be penalties (i.e. fines, professional reprimand, etc...) for the attorneys that brought the actions. -- R. Desai, M.D., Dayton, Ohio
At present, most American courts do in principle provide remedies for frivolous litigation, but those remedies are purposely made hard to use and unrewarding except in the most egregious cases. (In 1993, at the behest of organized lawyerdom, Congress pulled the teeth from what had been a relatively successful sanctions device, Rule 11 of the Federal Rules of Civil Procedure). Aside from reinstating a stronger-than-ever Rule 11 in federal courts and its equivalent in state courts, we are intrigued by the idea of confiding to the jury, rather than judge, the call on whether or not a decided case was frivolous or without merit -- if only because it would force some of our friends in the plaintiff's bar to decide whether or not they believe their own rhetoric about trusting juries. -- ed.