I find that it is not the claims that are frivolous but the litigation that follows. The reality is each time I have a suit against a “big firm,” representing a “big company,” they threaten me with sanctions at each turn unless I do exactly what they want. They never agree to anything, and bring countless motions like motion to dismiss if a brief is one day late. The court just says “seriously?” and denies it. Everyone really knows that they are (1) making busy work to increase billing, and (2) looking “tough” to their clients. There is zero cooperation, because they can bill more, and they feel like they can intimidate you and work you into submission, and they will be paid handsomely for it. And there will be no consequences, like sanctions. Their client has deep pockets. Someone in the corporation can justify spending the money because it’s not their own. The most cooperation–and civility–I receive is when both attorneys are being paid a flat fee or a contingency, or have a client who is not wealthy. That is all you need to know right there.

As far as having to defend a case, everyone knows now that many insurance companies defend everything, even legit cases, to the death–including trial, because they can (1) pay their lawyers a flat fee in a very competitive market, or else the lawyers are salaried employees, and (2) it will force the Plaintiff to spend large sums of money on trial, especially doctor’s witness fees, which then comes out the Plaintiff’s recovery, and (3) hold on to their money for an extra couple of years. This makes it strategically better for the defense because many Plaintiff lawyers will stop taking those legit cases, or else will settle short rather than go to the expense of paying thousands for a doctor. (also applies to the City now).

If you want to reduce litigation, you can easily do two things: First. make doctor’s witness fees taxable as costs to the defense. Yes, loser pays. Second, enforce sanctions against lawyers that bring needless and groundless motions. Courts in Cook County rarely do that, even in egregious instances. At the opposite extreme, in California they hand out sanctions like lunch coupons, even for inadvertent things. When I witnessed it myself I was inspired to do the same in Cook County and got sanctions against a firm filing repeated groundless motions to vacate.

As far as settlement offers, if the Defendant has made a full offer of settlement, the court will simply be asked not to award any attorney fees after that point. I do that when I defend such cases, so the “system” is already in place. No one forces a judge to award anything. It’s just logic. You don’t get fees for work after the full (or max) amount has already been offered. Of course the full settlement is rarely offered in the first place.

Ironically, many who want to discourage “frivolous lawsuits” are advocating “loser pays” but at the same time decrying “loser pays.” They want “loser pays” when the Plaintiff loses, but have a problem with awarding attorney fees to a prevailing Plaintiff. When I handle tenant’s rights cases for the landlord, if I see early on the landlord will lose I immediately offer the money the tenant is owed, in order to stop attorney fees from accumulating. In tenant cases, I typically see the defense disputing and litigating cases they will lose, which only increases fees. Of course many landlords now have no assets and so a judgment is not worth anything, so the lawyer never gets paid.

As for nuisance cases, in view of my above experiences, I doubt the scenario that some destitute young lawyer will file a frivolous case against a big company, finance the case, and “force” the defense to pay him a settlement. Filing frivolous cases is already punishable, but if you want to talk about that, let’s also punish frivolous defenses.