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Washington Examiner
July 13, 2005

Cracking down on frivolous lawsuits

In 2000, Rolf Rohwer led a big-game hunting party in Tanzania, where he shot a charging lion. Before giving up the ghost, the lion mauled Rohwer. Unhappy with this result, Rohwer sued the bullet manufacturer, claiming its bullets were defective.

Last November, a federal judge dismissed the complaint as devoid of legal and factual merit, but not before the defendant's lawyers had run ballistics tests, deposed expert witnesses and filed motions.

All that lawyering costs money, and therein lies one problem with frivolous lawsuits like Rohwer's: The system gives plaintiffs an unfair advantage. In American civil law, each side pays its own attorney fees. But plaintiffs who hire lawyers on a contingency-fee basis have nothing to lose. They pay only if they win. Defendants, however, must always shell out, if only to answer a frivolous complaint.

In May, the House Judiciary Committee approved a bill — the Lawsuit Abuse Reduction Act — that would balance the financial burdens of plaintiffs and defendants. Under LARA, when a complaint is dismissed as unmerited, the plaintiff must pay the defendant's attorney fees.

That idea is fair but not new. Federal rules were changed in 1983 to require judges to sanction lawyers who filed frivolous suits; sanctions could include paying the defendant's attorney fees. But in 1993 Congress rewrote the rules to make sanctions optional. Since then, if a judge finds a complaint to be frivolous, the plaintiff has 21 days to withdraw the complaint without penalty. By then, of course, the defendant has wasted time and money answering a groundless complaint, as in the Rohwer case.

LARA would reinstate the 1983 rule and make it stronger by requiring judges to award attorney fees to defendants when complaints are frivolous. Plaintiffs' lawyers oppose this because their clients would lose the advantage of a risk-free shot at defendants with deep pockets - an advantage that encourages lawsuits.

As this rule change applies to federal courts, it is reasonable and deserves to be enacted. But another provision in LARA would extend the rule to state courts by requiring state judges to determine whether a complaint affects interstate commerce. If so, the revised federal rule under LARA would apply.

This raises a troubling constitutional question. Congress plainly has the authority to make procedural rules for federal courts. But where in the Constitution does Congress find authority to legislate civil procedure in state courts? Even friends of LARA are hard put to answer that one. This provision in the bill should trouble anyone who is serious about the principle of federalism, a principle that surely trumps the aim of reducing frivolous lawsuits.

The motivation behind the state provision is understandable: Only about 10 percent of frivolous lawsuits are filed in federal courts. The rest are filed in state courts. Without that second provision, LARA's power to curb abusive lawsuits would be limited to federal cases.

But 10 percent of a loaf is better than nothing. LARA's main theme is sound. When defendants are forced to waste money answering frivolous complaints, plaintiffs should pay those costs.

Congress would do better to nail down that worthy reform in federal courts and let others take it as a model to promote in state legislatures. There are plenty of state-level reform groups eager and able to do just that.

Do they stand a chance of succeeding? Indeed they do, if the results of a Harris Poll released last month are any indication.

Only 16 percent of Americans trust the legal system to defend them against baseless claims; 76 percent agree that fear of frivolous lawsuits discourages people from normal activities; and 83 percent say the legal system makes it too easy to file baseless lawsuits.

In our democratic system, those odds and some strategic patience are all you need to constrain sue-happy plaintiffs. Pass LARA on a solid constitutional footing — and then carry on the reform battles in the states.

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