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Brooks Schuelke
Brooks Schuelke
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Tort Reform: Frivolous Defenses

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The “tort reform” movement is one of the most successful marketing jobs in modern day America. And one of the key components of that marketing has been an effort to try and convince the American public that frivlous lawsuits are a big part of the problem. But that’s far from the truth.

In my experience, the biggest factor in the cost of litigation is frivolous defenses — insurance companies and defense attorneys pursuing defenses and taking positions that have little chance of success and that only drive up the costs for all involved. This week, there was the perfect example of frivolous defense conduct. In Massachusetts, a US District Judge issed a $10 million fine against Medtronics for the frivolous defenses and positions taken by its lawyers. In his order, the Judge stated as follows:

The defendants prolonged the proceedings unnecessarily (thus unduly imposing upon the jury’s time), they sought to mislead both the jury and the Court, and they flouted the governing claim construction as set forth by the Federal Circuit.

And these just weren’t run of the mill lawyers, they were attorneys from Dewey LeBoeuf, one of the largest law firms in the world. (Their website boasts that they have twenty-seven office on four continents. However, I didn’t see anything about the fine in their news or press release section of the site). If lawyers of their statute engage in such outrageous conduct, you can imagine that lesser-skilled lawyers might only be worse.

Sadly, I have been complaining for some time that these stories never make the popular press. So instead of just griping, I’m going to take some time over the next few weeks to actually do something about it. I’m going to highlight some of the abuses that I think are driving up litigation costs. Many of the examples will come from older cases, but the conduct still goes on today.