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Brooks Schuelke
Brooks Schuelke
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Tort Reform and Frivolous Defenses, Part 2

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As stated in a tort reform post earlier, I believe one of the big problems driving the cost of litigation is insurance companies and defense lawyers asserting frivolous defenses and taking frivolous positions. I have griped and moaned about the lack of coverage, but I haven’t done anything about it. Now, I’m going to quit being lazy and try to highlight some of these situations.

In November of last year, in the case of Samuel-Bassett v Kia Motors, the defense presented a frivolous defense that is a perfect example of my complaint. After the plaintiff prevailed in a class action, the parties submitted testimony as to reasonable attorneys’ fees. In that case, the judge became highly upset after the defense used a hired gun expert to testify that the plaintiff’s attorneys’ fees should be reduced by 86%, including arguing that the plaintiff’s attorney should only be paid at $235 per hour, $125 per hour less than what associates at the defense firm charged. In reaching a decision, the court noted:

Defendant requests reductions to plaintiffs’ base fee on the basis of the testimony of Mr. Marquess. Mr. Marquess’s review of the case was biased and intentionally factually restricted. The court rejects the concept that an expert is nothing more than a hired gun who applies “expertise” to whatever material is provided by counsel without any responsibility to request available information reasonably required to render an honest, valid opinion..The professional witness testifying without integrity, saying whatever their masters pay them to say, makes a mockery of the integrity of our system of justice.

Law blogger extraordinaire Justinian Lane nailed it on the head when he wrote, “The defense strategy is simple: try and make plaintiff work so unrewarding that injured consumers can’t find a lawyer to take their case.”