It’s in your court: December 17, 2014


Frivolous Lawsuits and Awards of Attorney’s Fees
We hear about them all of the time, usually on TMZ or Entertainment Tonight:  seemingly-frivolous lawsuits. I just read that a model-contestant who lost on a reality tv show sued one of the show’s judges who found out she had been employed by an “escort service.” We all oppose frivolous lawsuits. They waste the litigants’ time and money. They waste judicial resources, so they waste your tax dollars.  But one person’s “frivolous lawsuit” is another person’s access to justice. The U.S. Constitution provides the right of citizens to petition for a “redress of grievances” which has origins in the Magna Carta in England in 1215 A.D., and is referred to in the Declaration of Independence. The widely-discussed example of a frivolous lawsuit is the woman who spilled hot coffee in her lap at the McDonald’s drive-up window. But was it as frivolous as everyone seems to have concluded?
Here are the facts as reported in The Wall Street Journal: the plaintiff in this matter was an 81-year-old woman. She spent seven days in the hospital treating the third-degree burns and having skin grafts. It was the policy of McDonald’s to brew the coffee at 195 to 205 degrees and hold the coffee at 180 to 190 degrees. Additionally, in the ten years prior to this case, McDonald’s had received 700 reports of coffee burns and had settled some for more than $500,000. The plaintiff stated that the reason why she brought the suit was that McDonald’s dismissed her requests for compensation for medical bills with an offer of $800. Plaintiff continued to try to settle the case, but McDonald’s did not accept the offers, including the recommendation of the mediator, so the case went to a jury trial.  The jurors eventually found that the plaintiff was 20% negligent for opening the coffee on her lap and McDonald’s was 80% negligent. The jury awarded the plaintiff $160,000 in compensatory damages and $2.7 million in punitive damages. The judge reduced the punitive damages to $480,000, and the parties eventually settled on a sum less than $600,000.
Under our American system of justice the ability to collect attorney’s fees if you win your case and are the “prevailing party” is severely limited, considerably more so than under the British system, from which our common law is derived.  Under the “English rule,” the prevailing party’s attorneys’ fees are largely paid by the loser. This rule has been adopted by the State of Alaska.
In Minnesota, by comparison, the winning party in a lawsuit generally can only obtain an award of their attorney’s fees against the losing party if such an award is allowed either in a written contract between the parties or by a statute. For example, the court may award attorney’s fees to a party in a divorce case because it is allowed by statute. Attorney’s fees may be awarded based on the inequality of the incomes of the parties (income-based fees) or based upon misconduct by one against the other in the litigation itself (conduct-based fees). Misconduct could include failure to timely pay court-ordered child support or spousal maintenance, failure to comply with court-ordered child visitation, or failure to answer an attorney’s discovery requests about income, property, debts and other aspects of the party’s circumstances.
Contract-based attorney’s fee awards are based upon a breach of a written contract providing for an award of attorney’s fees and costs if a lawsuit is necessary. Common examples include lawsuits to collect unpaid rent under a house or apartment lease, to collect a down payment on a contract to purchase real estate, and to collect an unpaid credit card debt.  Awards of attorney’s fees must be reasonable and based upon the amount of legal services provided to the prevailing party.  However, absent a statute or contract allowing an award of attorney’s fees to the prevailing party, an award of attorney’s fees is not available if the claim is not in “bad faith,” that is, if “the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law” and are supported by evidence. If the claims or defenses are clearly “frivolous” and not warranted under existing law and evidence, an award of attorney’s fees can be made to the prevailing party.
Many “frivolous” or unsupportable claims or defenses never get to jury trials as they are either dismissed by the court, or judgment is entered for one party,  upon “motions for summary judgment” by one of the parties.  Summary judgment is granted when there are no material facts in dispute and one party is entitled to win as a matter of law.    To summarize, there are a variety of remedies available to the defendant who is “frivolously sued,” or the suing party (plaintiff) who faces a frivolous defense, but certainly people have differences of opinion on what is frivolous.  Ultimately the court will decide what lawsuits are frivolous and must be dismissed, and whether an award of attorney’s fees is warranted under the law.
Remember it’s in your court!
Submitted by Judge Steve Halsey, Wright County District Court, chambered in Buffalo.  Judge Halsey is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District.  Excerpts can be viewed at  Go to Community and click “The District Court Show.”  Judge Halsey may also be heard on “Legal Happenings” on KRWC 1360 AM (Buffalo) on Saturdays at 12:30 p.m.  
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