08 November 2005

Sometimes the Numbers Do Lie

Two items I came across this morning demonstrate that numbers aren't necessarily reliable. On the one hand, there's an assertion that the average American company "has 37 lawsuits on the slow march to resolution," based on a survey conducted by Fulbright & Jaworski. Leaving aside that the article in question doesn't say who was asked—it probably includes only Fortune 500 or even 100 types of firms, some of which continue to face lawsuits simply because they purposely push the legal envelope (and yes, I mean you, subprime lenders, but not only you)—the article omits a crucial point. Calling a company "awash in litigation" when it is probably the claimant/plaintiff in a fair proportion of those suits (since "the most common issue is a plain old contract dispute") is just a little bit disingenuous.

Then, on the other hand, the Lamar Smith bill is raising its dishonest head again. This bill would make a one-year suspension of lawyers who file "frivolous" lawsuits mandatory. The bill does not reflect much understanding of litigation, let alone reality. It has been my sad experience—consistent with many of my colleagues on both sides of the v.—that frivolity is much more common from defendants than from plaintiffs. Gander, please meet the sauce for the goose. Particularly when the nominal "defendant" (who would not be covered by the Smith bill) files a torrent of frivolous counterclaims and/or defenses, it seems to me that a more even-handed application of such a measure is the only defensible rationale. And, of course, all this will do is make judges even more reluctant to make objective findings that a given filing was "frivolous"; instead, it's going to be personality and ideological conflicts that drive the findings. And, on that basis, something like Brown might be treated as "frivolous"—which, although it's the result that Smith et al. think they want, really won't help their position at all.