In response to my post below about inadequate sanctions in the Econo Lodge case, Stephanie Mencimer asks how the costs of frivolous litigation can be so oppressive, how it can cost millions of dollars to defend against them, given that — in her view — the defendants can just hire paralegals to prepare boilerplate responses.
Well — as Ted points out in the comments to her post — I had said “thousands,” not “millions.” But the bigger problem with what she wrote is that she dramatically underestimates the burden and cost of litigation. We’ll put aside the fact that her proposal — to have paralegals file boilerplate responses — would constitute legal malpractice on the part of the defense attorney. Of course it’s cheaper when cases can be decided (as Mencimer suggests) “with no discovery, no depositions and apparently not even a court appearance” — although it’s not clear from the Econo Lodge case that in fact there were no court appearances. But other cases, even ones that are completely meritless, require a lot more before the defendant can be vindicated.
Case in point: Kinderstart v. Google. The complaint was yet another attempt to sue Google over its rankings of web pages for search results. (Another suit along those same lines: Mar 1) Only part of the case was frivolous (the federal judge awarded sanctions against the plaintiff on two points (PDF of sanctions decision), but the entire case was meritless, as the court ruled (PDF). Google is a private business, and the courts keep rejecting the notion that lawyers should decide how Google can rank websites. Every claim made by Kinderstart was resoundingly rejected; Eric Goldman has the gory details.
But even though the case was dismissed before discovery even began, that didn’t make it — contrary to the beliefs of so many anti-tort reformers such as Mencimer — quick. In fact, it took a full year to dismiss the case (and there’s always the possibility of appeal). So why, if it was such a loser, did it take so long? Because after the court dismissed it the first time, the judge allowed the plaintiffs to amend the complaint; in all there three versions of the complaint filed. Google had to respond to each one, and there were in-court hearings each time Google moved to dismiss the case. Google also had to file an anti-SLAPP motion, a motion to strike the complaint, and a motion for sanctions.
Google “won” this case, and even won a yet-to-be-calculated sanctions award. But in the end, it took a year and Google spent, conservatively, tens of thousands of dollars to do it, even without discovery. Now, I don’t expect every non-lawyer to realize how long and expensive the legal process is — but Mencimer holds herself out as a pundit on tort reform; you’d think she’d have a little more of a sense of how the system works.
(Previous mention of this case, Oct. 2006.)
One Comment
Maybe I am being a little cynical, but why do I think that it is not the “democratic legal system” that concerns Stephanie Mencimer but rather the loss of income for the lawyers. The only thing we can be certain about in any lawsuit is not that justice will be done, but that the lawyers on both sides will make money. Any time someone looks at reforming a system it is always the people with a vested interest in the current system that will make the biggest fuss about the sanctity of the existing system and why changing it would be detrimental to our way of life. Who for example would fight the hardest to preserve our current tax system but the accountants who make their livelihood on the complexity of the tax laws? It is not justice for the “little man” that concerns the lawyers but the loss of income if these frivolous lawsuits were not allowed to get into the courts.