What does ‘frivolous lawsuit’ mean to you?

Today at the Columbia Rotary Club, our speaker was Darrell Scott, lobbyist for the S.C. Chamber of Commerce.

He talked about what he does for the Chamber over at the State House, and told some sea stories about his experiences (some people say “war stories;” I’m from a Navy family). The least convincing part of his presentation? A couple of times in explaining a close vote, he referred to the experience giving him “gray hairs.” Sorry, kid — I don’t see ’em.

Two things interested me in particular. One was the report card on the 2012 legislative session, which included grades for all of the lawmakers. You can see the full report here. I’ve reproduced the scorecard on the senators above. It’s interesting to see who stands well with the Chamber, and who does not. Some observations on that chart:

  • You see the expected split, with most Democrats scoring low and most Republicans doing better.
  • But Democrat Nikki Setlzer, who represents a big chunk of that most Republican of counties, Lexington, scored a perfect 100.
  • John Courson, recently named the Chamber’s 2012 “Public Servant of the Year,” fell a bit short of that, at 94. The disagreement was over the “Business freedom to Choose act (h.4721),” which the Chamber described as “legislation to prohibit local governments from enacting flow control ordinances on solid waste disposal.”
  • Vincent Sheheen, whom the Chamber endorsed for governor two years ago, only scored a 69 — fairly typical of Democrats.
  • That was still better than Tom Davis, who lately has been styling himself the Ron Paul of the state Senate. He got a 68. This reminds us of something — the Chamber is about as enamored of Tea Party Republicans as it is of Democrats, if not less so.

The other highlight of the meeting, I thought, was the exchange that came when attorney Reece Williams got up to ask young Mr. Scott a question. After explaining that he was a veteran of more than 200 jury trials, he asked the speaker how he would define that bete noir of the Chamber, a “frivolous lawsuit.” I enjoyed the way he asked the question — aside from the fact that he presented it in a civil, gentlemanly, even courtly manner (Reece is as nice a lawyer as you’d ever want to meet), as he spoke, he turned way and that to address the “jury” of fellow Rotarians, thereby gently suggesting that he was challenging each of us with the question as well.

The speaker answered him, but his answer wasn’t as memorable to me as what Realtor Jimmy Derrick got up to say in response. After explaining he and Reece are old friends, Jimmy said that he reckoned he had been sued about 200 times himself, and he pretty much considered those actions to be frivolous.

Afterward, I asked Reece what he thought of the answers he’d gotten. He said they pretty much confirmed what he’d thought before: “A ‘frivolous lawsuit’ is one that’s brought against me…”

8 thoughts on “What does ‘frivolous lawsuit’ mean to you?

  1. Kathryn Fenner

    A frivolous lawsuit is one where the facts reasonably viewed do not justify the recovery sought under current laws or reasonable extensions thereof. Almost all of these should be done away with with pretrial motions.

    Reasonableness is a fairly well-understood legal concept, too.

    I think Mr. Williams hit on the same standard people use to define scumbag attorneys: those who represent the other side, who represent your side but do not work miracles and win you what you think you deserve, or those who seek to be paid in accordance with the agreed-upon fee schedule.

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  2. Brad

    Well, no — at least, I don’t think so. I think Jimmy meant for us to hear that as hyperbole when he said 200 times, that it just SEEMED like that many.

    But I understood Reece to be serious, and that’s a credible number of trials for him…

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  3. Bryan Caskey

    Couple of thoughts:

    1. The jury trial is a disappearing phenomenon. The large majority of cases settle through some sort of ADR or are otherwise resolved short of reaching a jury. You’ll have a hard time finding someone with more than 200 jury trials twenty years from now.

    2. Kathryn’s definition of “frivolous lawsuit” seems to be paraphrasing the statutory definition. To the extent that’s the statutory definition, I can’t argue. I would say that it is not that in practice, though. One problem is that it’s extremely difficult to obtain summary judgment in South Carolina civil cases. There are plenty of frivolous defenses and claims that simply drag things out. Again (as with the method for selecting Judges), I have to say the Federal civil procedure system is far superior to our state system.

    In the Federal system, you have an immediate scheduling order that requires immediate discovery, and there is a clear, quick path to trial. You also have the same Judge the entire case, so the Judge has an interest in resolving the case in some manner. Not so with our State Courts. The docket is interminable, and you get different judges for each hearing (which is a bad idea when the law and/or facts are complex).

    The Federal system moves cases faster than a knife fight in a phone booth. The South Carolina system moves cases slower than a snail drunk on molasses crawling up an ice hill in January.

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  4. Mark Stewart

    So are the Chamber of Commerce and statistics not playmates?

    Only 4 Senators scored below a 70. And the Chamber appears not to dock the legislators for not voting. Unless I miss something, not voting is often the way to not vote for a bill and yet not suffer any consequences for pulling a weasel. Looks like the Chamber is more interesting in praise than punishment – but given the forum that was the appropriate posture.

    What was their point? That they achieved overwhelming support through lowering the bar?

    And I thought SCDOT made a strange presentation to your Rotary group earlier this year.

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  5. Brad

    Mark, this is politics, not statistics. And real, grown-up politics, rather than the partisan kind of phony absolutes.

    But the math works — as long as you don’t count the no-votes.

    On this scale, I suppose you would say below 70 is failing. But as you note, not many fail, and even then not by much.

    The Chamber doesn’t want to give up on anybody. The message here is that yes, you got below a 70 but doggone it, you’re just SO close, and if you’d just vote with us one more time, you’d be passing, and we’d be ever so proud of you.

    Practically speaking, given the way the Senate works, the Chamber can’t afford to have ANY senators as enemies. So the scorecard is meant to encourage, not punish and certainly not marginalize.

    Also, votes in the Senate tend not to be close the way they are in the House. Bills either pass overwhelmingly, or they die.

    Note that the NVs tend to be — although not always — on votes that the Chamber easily won. The Chamber is happy just to have a senator not OPPOSE it.

    Another lesson here is that pretty much all lawmakers in South Carolina are “pro-business,” or like to be thought of as such, particularly in the upper chamber.

    Check out the scorecard for the House. Different story. You’ll see a number of scores in the 30s.

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  6. Kathryn Fenner

    Bryan, agreed. Why don’t more lawyers and judges go after lawyers who file frivolous lawsuits? Sanctions exist, but someone has to call a foul.

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  7. Mark Stewart

    Brad,

    I totally agree – the Chamber wants to encourage support from Legislators but bean them. My point was just that it is so obvious that they just ignored the no vote situations. I thought that they could have found a smooth way to show that not voting still has a bit of an impact on how the Chamber scores voting on its issues; keep it real as it were.

    Maybe it wasn’t exactly fair to compare there presentation to SCDOT’s. This was much more adroit and nuanced. And positive.

    Reply

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