Just today I told two someones life isn’t fair –

Just today I told two someones life isn’t fair –

Just today I told two someones life isn’t fair – Lauren Ellerman

Just today I told a client that I was sorry he was being sued and had to pay attorneys fees. I was sorry because there is almost no feasible way the corporation that is suing him can win one single dollar or dime in damages. And no, I explained, there was nothing I could do to make the lawsuit go away right now despite the very obvious fact that the case would go away eventually.

I feel like I am talking to my almost three year old about how life isn’t fair or how we only have crackers and don’t have cookies in the house so I can’t give her a cookie.

Lawsuits are not always fair. Sometimes frivolous lawsuits are filed and we as attorneys and litigants spend hours and hours in court, writing documents, making arguments, giving depositions just to reach the conclusion everyone knew was there to begin with…. That the lawsuit has no merit and no damages occurred.

I am talking about a civil lawsuit. A breach of contract lawsuit, one where a party clearly has breached the contract but the breach has caused no economic harm.

I wear two hats at work. I help people who are harmed by medical malpractice and I help folks who have signed employment contracts and now need to transition away from a job.

We as Virginians have created certain base level requirements in healthcare malpractice cases. You can’t sue a doctor unless you have a doctor state in writing that the potential defendant was NEGLIGENT AND their negligence CAUSED HARM.

Do you see the word AND above? You can’t sue simply because they failed to diagnose your cancer, or infection, or flu. The negligence has to be the cause of your injury. You can’t just file a malpractice lawsuit because someone messed up. You have a burden of proof and must certify to the Court you have met it when the case is served.

But we don’t hold other individuals or companies to the same level we do health care providers. There is no litmus test in a general commercial lawsuit. All you need to do is write the words BREACH CAUSED DAMAGES and then you get months and months and months to prove it. And sadly, that means months to make the otherside pay attorneys fees (likely not covered by insurance like in medical malpractice cases) and wear the other side down into a position of surrender. Again, all in a case where a party’s breach has caused no economic damages.

I’m not whining (like a 2 year old about her cookie) about the inequity – I’m just pointing it out.

We as a society say we don’t want doctors to be faced with frivolous lawsuits (and I agree they shouldn’t be) but why don’t we offer the same protection to plumbers, or doctors in a contract suits, or engineers or hair dressers?

I think the disparity is obvious. Tort reform is a political issue where lines are drawn – victims v. doctors / ambulance chasers v. those who want to help. But what about protecting the guy who just needs to feed his family and buy braces for his teenage daughter. Doesn’t he deserve some protection from a frivolous lawsuit?

There is an imperfect bill in the US congress right now that could address these issues for low wage employees. It’s not sufficient – but maybe it’s a start.

Read more about the Bill, and it’s shortcomings – read this: http://www.forbes.com/sites/ericgoldman/2015/06/30/congress-should-move-to-restrict-employee-non-compete-clauses/

Maybe someday we will have laws that provide equal protection and not just those protections we base on moral judgment calls like which profession deserves more protection in the court.

Ok, I’m done now. But just in case you didn’t know it already – lawsuits aren’t always fair.



About the author

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.

Back to top