A significant part of my time is spent reviewing cases I do not pursue. I am sure some readers have opinions that there are too many frivolous lawsuits, but I have never seen one. I am sure that some exist and since it costs barely $100 to file a lawsuit in Jackson County, I am sure there are a few filed every day.
There is a website that you can go to and find a list of fabricated lawsuits. One of my favorite fabrications is the man who was driving a motor home down the freeway and left the driver’s seat to go to the rear of the home to make a cup of coffee. The motor home allegedly crashed and the owner sued the manufacturer for not warning him not to do it. It is a complete fabrication, but it certainly sounds like it would be a frivolous lawsuit if someone was silly enough to file it.
There are safeguards in Missouri law that make pursuit of a frivolous medical negligence case nearly impossible. Within 90 days after the suit is filed, the attorney must file an affidavit confirming that he has a written report from a health care provider in the same field of medicine that confirms the allegations in the lawsuit. If the affidavit is not filed, the case can be dismissed by the court. We also have a rule that provides for sanctions if we violate it which states that if we assert a claim or defense in a pleading, we must not do so for an improper purpose, and we cannot make a frivolous argument or claim. Also, any allegation we make must have evidentiary support.
Aside from the affidavit requirement, lawsuits are very expensive to pursue. Almost every personal injury or medical negligence case is pursued on a contingent fee basis. If the case is frivolous, that means that there are overwhelming odds that a jury of 12 people will see the frivolity and return a verdict for the defendant. I barely survived geometry and I took one math class in college on a pass/fail basis with the ultimate goal of being the dumbest one that passed. My math may be wrong, that I think 40 percent of nothing is still nothing.
The expenses of pursuing a personal injury case or malpractice case are not cheap either. We normally budget approximately $5,000 for a simple car wreck case if we have to try the case, and four times that amount for a simple medical malpractice case with one expert.
I love court reporters and have used the same reporter for most of my career, but she gets paid well. It is hard work listening to everything everyone says in a deposition so the reporter can accurately transcribe it. The basic deposition can cost approximately $500 and if we go to California, we take a lot of money because the court reporters in California are very proud of their work.
We had a case once upon a time in California that involved taking three depositions in three days. We took our court reporter with us, paid for her airfare, hotel and meals and still saved money. We also were assured of a perfect transcript.
Expert witnesses can be expensive, too, some more than others. The more specialized the medical expert is, the higher the cost. We had a case involving a spine surgery. I hired an expert from Texas and his fees to review the case were reasonable until it came time to take his deposition. Normally, the opposing counsel is required to pay for the fees of the expert for a discovery deposition to determine the expert’s opinions.
When it came time to produce our expert for deposition, we found out his minimum fee for a deposition was a breath-taking amount. My opponent balked and it was hard for me to argue with him. I was too far into the case to change experts, so I worked out a deal. I agreed to pay half of his fee for the deposition which made the fee reasonable to my opponent, but the deal was that he could not cross-examine my expert on his high fees at trial. My opponent agreed and off we went.
We had to try the case and his fee for a trial appearance was four times his deposition fee. Thus, we decided to videotape the deposition which made it equal to what it would have cost for a normal expert to come to trial. The expert testified that he charged such a high amount because he did not want to come to trial. His strategy worked.
Deposition fees and court reporter fees are the primary costs in most cases. It is a cost of doing business that keeps getting more expensive, which is why I spend so much time reviewing cases I don’t take. Last week, I reviewed seven cases and did not take any of them. Having reviewed cases for over 30 years, I can make a quick determination in many cases. On medical cases, I spend much time looking at the medical literature to get a sense of the issues. If there is any controversy in the literature on the issue, I put my track shoes on and run.
I love my work because it is challenging and I learn something new every day. Yet, the cost of doing business keeps rising. People who complain about frivolous lawsuits need to come watch me sign checks.
-- Bob Buckley is an attorney in Independence, www.wagblaw.com. Email him at firstname.lastname@example.org