Recently, a young lawyer running for political office handed me his pamphlet and asked me to support his candidacy.  Among his accomplishments, he listed numerous years of representing businesses “against frivolous lawsuits.”

Excuse me?  Is he saying all of the lawsuits brought against his clients were frivolous?  Or does he have special expertise in warding off claims which are “unworthy of serious attention,” “trivial,” or “inappropriately silly” (source: Dictionary.com)?

Amid all the hoopla concerning healthcare reform, people recklessly toss around the “frivolous lawsuit” canard, as if people with claims for damages and their lawyers have nothing better to do than file lawsuits with no merit.  We are being put in the same box with the parents of the “balloon boy.”

I understand the “tort-reformers,” as they like to call themselves.  Big business and insurance interests at least have a stake in emasculating our judicial system.  If individuals are denied access to the courts, they are the big winners.  As we have seen product liability, medical malpractice, premises liability and security litigation virtually destroyed by the “tort reformers,” are products, hospitals, grocery stores and parking lots safer?  Take away the “litigation tax,” that myth that suggests doing business in America is unreasonably burdened by the cost of making things safe, and who benefits?  Is it you or the guys with the big bonuses?

But when lawyers engage in lawyer bashing, it truly makes me sad.  Either they were not paying attention in law school, where we learned why we need a robust civil justice system, or they are simply casting a net where they think the most political fish swim.  Either way, they are pandering to an impulse, i.e. blaming the victim, which is simply wrong.

The late Dean Page Keeton, an architect of modern tort law, explained that the ability of injured people to recover damages from those who caused the harm serves several functions.  Here is just a sampling of what the ability to sue does for us:

1.  It spreads the risk, which means it allows society to absorb the loss rather than imposing the burden on a single individual.  This, by the way, is the purpose of insurance. Companies like Allstate and State Farm do not exist solely to collect premiums and make “good hands” and “like a good neighbor” commercials.  They are supposed to pay claims.  What happens when they refuse to pay a claim? Without the courts, you are left with asking “pretty please.”

2.  Tort law makes society safer by discouraging dangerous conduct.  Did you really think the federal government (FDA, OSHA, Consumer Product Safety Commission) was making corporate America adopt safer practices?  Did your government prevent the BP explosion or protect us from Chinese drywall or lead painted toys?  How long were seat belts and air bags feasible ways of protecting automobile passengers before the government required them? (Answer – it was after the companies grew tired of being sued over refusing to adopt safe technology.)

3.  Access to the courts keeps people from taking their grievances to the streets.  When enough fathers of children killed by negligent doctors find they cannot bring a lawsuit because the cost of litigation outweighs the possible recovery (thanks to “malpractice reform”), someone is going to snap and pick up a gun.  I am not being melodramatic.  I hear the anger and desperation in the voices of people whose cases I turn down for economic reasons.  When “noneconomic damages” (such as “mental anguish,” which is all you have in a case for the wrongful death of a child) are capped at $250,000, a lawyer cannot afford to invest $50,000 to $100,000 into a high-risk proposition like a malpractice lawsuit.

We lawyers should advocate for a more efficient, fair and effective court system.  No one wins frivolous lawsuits, except the insurance lawyers who defend them (those guys get paid by the hour, unlike plaintiff lawyers who get paid only when they win).  That is why so few of them are actually filed.  You may hear media accounts of lawsuits that are unworthy, trivial or even silly.  However, these claims cost money to prosecute, and lawyers who engage in filing them soon find themselves out of money.  Courts have procedures in place to toss out claims with no merit.

Trashing the court system by applying the “frivolous lawsuit” tag to every claim is truly throwing out the baby with the bath water, and it is beneath the dignity of a real lawyer, and anyone I would support.