Frivolous Lawsuits

In this episode, personal injury attorney Brandon Smith demystifies the concept of frivolous lawsuits—cases with no legal or factual basis that waste court resources and are penalized under state law. He explains that while the term is often sensationalized, most legitimate personal injury cases arise from real harm, such as catastrophic injuries or wrongful deaths. Smith notes that some cases initially appear frivolous until deeper investigation—like reviewing surveillance footage or medical records—reveals valid grounds for recovery. Conversely, fraud exists too, such as people staging accidents in stores.

He also stresses the role of video evidence in clarifying facts and how defense teams sometimes withhold footage, which can lead to court sanctions. For business owners, Smith recommends robust insurance coverage and clear policies to protect against potential litigation in a highly litigious society.

Discussing famous examples like the McDonald’s hot coffee case, Smith highlights how public perception often oversimplifies complex situations. He distinguishes between frivolous lawsuits and cases that only seem minor but involve genuine injuries.

Finally, Smith reassures listeners that consultations for personal injury claims are free—lawyers like him work on a contingency basis, meaning they only get paid if the client wins. His parting advice: don’t hesitate to call an attorney after an accident, seek prompt medical attention (preferably from an MD), and remember—“you only get one body,” so protecting your health and rights is never frivolous.

https://www.brandonsmithlawfirm.com/

Transcript

SPEAKER_00: 0:00

Alright, folks, today we're going to talk about frivolous lawsuits. And that could be McDonald's and hot coffee, but we're going to have a fun time regardless. So, three major takeaways. Uh, Brandon, you're going to tell us what this means, this crazy word, frivolous lawsuits. If I go and Google it, I feel like I'm even more confused. Then take us through number two is going to be take us through some some examples. Give me one that was and give me one that wasn't. And then the last thing, if folks, folks out there are saying, I don't even want to call the firm because this is so like they're going to laugh at me. What does that person really do? So why don't you start off and tell us what it's all about? What does it mean? What's the definition? Absolutely.

SPEAKER_01: 0:44

Well, it is a very hot topic and a very uh interesting attention-grabbing word, frivolous, because people either think there's way too much litigation in attorneys, which there probably is, and there's also legislation that's often geared almost in every state to try to curb what a frivolous lawsuit is. So first thing is what is a frivolous lawsuit? That is a lawsuit against someone else that has zero legal standing. None. So there are no facts that give rise to anything that would be recoverable under the law, state or federal law. Each state has some variation of what a frivolous lawsuit is and looks like, and lawyers that bring those frivolous lawsuits, meaning suits that have zero facts that could ever give rise under the law of any recovery. That's a frivolous lawsuit. Anything that fits within that, there are mechanisms and laws against bringing suits like that, such that if a lawyer like me or anyone were to bring a frivolous lawsuit, there's penalty. You can't do that. And so a lot of times the misconception can be is this frivolous? Is it not frivolous? And usually you don't know until you start getting into the case to see whether or not it's actually frivolous, or where you start getting more information about what happened. And what we do is is catastrophic work where somebody's wrongfully hurt, terribly hurt, or killed. Yeah. And that's never frivolous, that's never frivolous in the sense that we want to listen and hear like what happened. Yeah. But it can be frivolous if there's not any facts under the law to support a recovery, independent of how bad somebody's injured. Got it. So frivolous is a big buzzword. Like frivolous lawsuit, like people want to say we need to change our laws, so there are less frivolous lawsuits. But as you mentioned at the beginning, there's a lot of times where you get into a case and you just see there's more here than a frivolous lawsuit. Yeah.

SPEAKER_00: 2:47

Yeah. Where do we usually see those? Is it restaurant industry? Is it business? Like what who's getting them? Well, frivolous lawsuits are everywhere.

SPEAKER_01: 2:57

Okay. Frivolous lawsuits, whether it's a commercial dispute or whether it's a bad injury case, there are always these instances where a case just should not go forward. And our courts certainly don't appreciate it because they're busy enough with their own dockets. So they're serious. Yeah, absolutely, like massive stuff. So you don't want to see someone bring a case or a lawyer bring a case against someone else that has no merit. If it lacks merit, which means it doesn't have facts giving rise under the law to a case. Okay. It's frivolous. So we'll see it in any in any industry. It can be the service industry, it can be restaurants, like you said. Um there are really I've seen cases where a big box store, Target, Walmart, Lowe's, Home Deep, where because of video, CCTV, you'll be able to see someone creating their own injury, which that's a frivolous lawsuit. So oftentimes, you know, a big box store will reach out if there's a potential claim or we think there's a potential claim that we're investigating, say, hey, may want to take a look at this video first. And there's there are cases, thank God we've never had anything like that, but where folks will spill something, look over their left, look over the right, and walk into the spill and say, My back hurts. No joke. That happens. So that is a frivolous case. That is a frivolous lawsuit, right? That really happens. That happens. So that's not a case we'd ever take, obviously. But but there are times where you get into a case and you're like, whoa, I thought it was different. It's it is different, you know, it's these facts have really impacted how I view the case. Right. And whether or not I can proceed, because we have to have facts under the law that give rise to the case. So that's just one of many examples where there unfortunately is fraud that happens. Right. And and that's why you have to have a lawyer that will look at it with reasonable lens. Because we always say we're not trying to put a square peg in a round hole, like we're trying to follow the facts and figure out what is right. Right. And if someone created their own injury, a lot of times that's a frivolous case.

SPEAKER_00: 5:08

So what happened? Is it possible that somebody can call you? It sounds like an incredible case. Like, sure, hey, I got hurt. I was walking down the aisle of let's use Lowe's as an example from Depot, whoever. And then is like one of the first questions you ask is for that footage, or can you be going months? You think it's a great case, and then all of a sudden the lie comes out where no, that here's the footage. They made they spilled the coffee themselves. Right. Can that happen? Absolutely.

SPEAKER_01: 5:38

And a lot of times, the most willing insurance companies or the most the insurance companies represent the big box stores, and usually that's either by a team of lawyers or adjusters, and the more willing they are to share the video, usually is the indicator that it's not a case. Yeah. So if they're not willing to share the video, I'm like, okay, something's here. Because oftentimes without a lawsuit, they're not gonna give their CCTV just to a lawyer just because we asked for it. It requires often a lawsuit. So if there is something fishy, yeah, usually they'll say, look at the law, look at the video, take a look at the video, and we'll look at the video, and we may still disagree. Oh, well, actually, that that is a case. Yeah, but they want to share the video to try to cut a lawyer off from even pursuing the case. If they say I'm not gonna share the video, then I know it's bad. I you I know it's bad. Or if they say as a policy we don't share it, yeah, I know that because I was on the defense side, I know that there's a reason behind that. And so we usually figure out that reason, but it's not until we get into litigation. And now I may for the first time I may get that, I may look at it, I may look at the video and think, holy smokes, like this is not good for my client. Right. Or I may get the video and say, This is lights out, great case, we're pursuing it with everything we got.

SPEAKER_00: 7:01

And has that happened? Absolutely to you? Yeah, of course. So you were able to get footage, but after you filed a lawsuit, that's right. Then you get the footage. Exactly. Have you had a go both ways where like you got the footage and it was incredible? Yes. And then have you had it go where you got the footage and it flopped or it it was a bad thing?

SPEAKER_01: 7:19

Well, sure. I mean, thankfully, I've gotten footage where I've never gotten footage that says, okay, we're out of this case. Got it. Thankfully. Yeah. And usually it's because we're very rigorous before we even get there to figure out what happened, how it happened, to orient to the scene, yeah, to understand the mechanism of injury, to really ferret out whether or not it's a case. But so I thankfully have not had that happen where I get the video and it's like, oh no, this is not a case, we need to get out.

SPEAKER_00: 7:47

Right.

SPEAKER_01: 7:47

That being said, I have on the other side, I have gotten a video, and it was intimated to me throughout the entire process. This is not that bad of a case, this is not that big of a deal. You need to, you know, move on, Mr. Lawyer. I get the video, and I'm like, it's like you want to talk about frivolous lawsuit, there's also frivolous defense, right? Where it's, you know, we're saying that there's nothing here, we're we're completely innocent. We figure out that they're actually not, and then we we work it up.

SPEAKER_00: 8:18

Is there a penalty for them for for acting that way? There can be. For withhold they were sort of withholding, I guess, at a point. There can be, absolutely. Yeah.

SPEAKER_01: 8:27

So there are penalties like through the court system almost in every state. Yeah. If you withhold evidence or if you're not forthright in your discovery responses, yeah, that you can get what we call sanctions against that entity. Yeah. And there are different ramifications for those sanctions that a judge has absolute discretion over. Um and so they're they have the discretion to say, yes, that was unfair, you should have given that earlier, sooner, that kind of thing. Yeah. And, you know, there are penalties for that for sure. So the system, I will say, is very fair in the sense that it's really seeking good actors on both sides. Like, how can we get to the bottom of it? We're in every case, we're on a fact-finding mission. There are things that go our way factually, there are things that don't go our way factually. Sure. And we want we want to understand what the facts are that gave rise to our clients' injuries, one way or the other. Right. Good, bad, and ugly. Right. So, and but video is a huge part in that.

SPEAKER_00: 9:20

That's a huge part. What about so we're still on the like the first segment here, the definition and getting clarity around this frivolous, this frivolous stuff. So what about the business owner there out there who lives in a lot of fear? They they they do, right? And I know from being in on different entrepreneurial circles, like they're constantly fear in fear of getting a lawsuit filed against them because they hear a lot of times threats that usually don't amount to anything, but like, you didn't take this back and I'm gonna leave you a big a bad review and call my lawyer, right? Right. So you there's a lot of like, I'm gonna call my lawyer. Right. Is there some peace of mind for the business owner out there listening to this that like it's you you're not just gonna get a lawsuit dropped on your doorstep for silly little stuff? Is there any protection or any advice you would give?

SPEAKER_01: 10:10

Just insurance, just make sure you get as much insurance as you can afford as a business owner. Yeah, so get as much as you can afford. It's a consider it a business expense, and that will help ease your mind. Unfortunately, we live in a society where anybody can sue anybody about anything at any time. Yeah. And so that uh it's it's important to be cognizant of that reality as a business owner, right? But it's also important to make sure you're you have enough insurance to protect yourself, your your assets, your family, your other employees, and so forth. So I that's always my big recommendation is just get insurance as much as you can afford. Obviously, I have an I have a uh litigious relationship against insurance companies, right? Because I'm advocating on people that are trying to recover insurance. Sure. But I'm also a business owner, and it's important to know as a business owner that you always have to be looking out for that, protecting your business, and the best way to do that is through insurance, but it's also just having good policies, right? Like making sure you have good policies and procedures, what to do in the event of an incident, yeah, how to take care of your employees, making sure you've got good policies and procedures throughout the corporation, the firm, sure to make sure your employees are following those things and then documenting that they are following those things. Yeah, that's extremely important, I think, at least to have some peace of mind. There's all we live in such a litigious society now. Sure. So people are always threatening lawsuits, there'll always be that. And maybe now more than ever, like, okay, no problem, I'll sue you for whatever. Right. That that doesn't mean it's right, but if and when that happens, and usually I say if you're impacting enough people over time, you're probably going to get sued at some point for something, even if it's not meritorious. You're gonna catch a case. Don't panic if you ever catch a case, but make sure that you also have have done the things that you need to do to take care of the business and others.

SPEAKER_00: 11:59

Helpful, great. Let's talk now two examples. So both sides of the spectrum, give me give me two, whether you've tried them personally or been involved or or just famous ones out there. McDonald's is always the big case, right?

SPEAKER_01: 12:14

Because they got a big verdict because they had hot coffee spilled on them. And ultimately, after if you see the Netflix and all of that, they actually didn't really recover much at all after the appellate phase and and all the lawyers that that came in there. So a lot of behind the curtain inside info on that is like they just didn't really recover that much after it was all said and done. So that whether or not that was a frivolous case, I mean, I'll let the Netflix speak for itself, but I do think that there are cases where plaintiffs like we represent, people that are harmed, can take more responsibility or can take some responsibility for their own actions. In that case, how you grab the cup, you ensure that the lid's on. How do you do you see steam coming off? That those type of things. Sure. But the the corporation also has an opportun opportunity and responsibility to make sure the lid's on, to make sure that they hand it off properly. And that and there, because at the end of the day, you're in business to protect your customers and to give them a good experience. So that was a frivolous case. The outcome wasn't as salacious as marketed ultimately when it came down to the result for that that individual. So that's a great example, though, of that is perceptibly a very shocking, frivolous type case. Yeah. What I see in my practice all the time are cases that you would think might be frivolous, but actually when you start pulling back the layers, are not. Are not. So in the and almost always I see this in low uh property damage, like in vehicle cases, yeah. Where somebody takes a big pop from another vehicle, tractor trailer, something like that. But necess not necessarily, it doesn't necessarily destroy the vehicle from like the first photograph that's taken. Okay. So maybe the property damage optically isn't a crushed can. And manufacturers are building cars in incredible ways and starting it and so forth. But the property damage is so little that if you look at a picture and you're like, how are you saying that you needed a surgery based on the property damage to the vehicle? Yeah. A lot of times people don't understand, like, well, the impact was so hard it broke the frame, it's a total loss. A lot of times folks don't understand that there's tailgates on, you know, on the on the tailgate. There's all kinds of things that may have caused the impact to the vehicle to like have zero property damage. But sometimes, whether it's a juror or an adjuster or an attorney, they're like, There's no property damage here. Well, how fast was the person going that it hit them? How how much of an impact was it? Where was the body on the person's body on the inside of the vehicle that took the impact? Was it twisted already? Were they looking over their shoulder? Did it catch them in the wrong spot? Did it cause a tear? Wow. There are different biomechanics that go into those things. But I think perceptively you think, and I'll even I'll even look at a photo and I'll be like, that photo is there's no property damage to that vehicle. Like I know there was impact, but how is this not a frivolous case? Like, how are they saying that? But you look at things like medical records, did they treat, where did they treat, how quickly did they treat after, when were they presenting symptoms? And once you start peeling back those layers, did they follow their doctor's recommendations? Had they been in prior incidents? Had they been hurt before? Were they already hurt? You know, there are different uh dynamics and layers to what you try to look at. And once you do that, like you can see, yeah, this actually was a big impact. Like a picture's worth a thousand words, right? But also somebody's medical history after a bad wreck, even if the property damage is like nothing, is well, that's also worth a thousand words, and it's actually real, you know. So and there and look, there are cases where there's a little tap in a parking lot that should not be brought, right? Or it should not be hotly pursued, right? But but there that's just the facts, yeah. But you have to get in there with the clients and with the people that have been injured to to really explore how bad is it? How bad is it, you know, and then you trust the medical professionals to say, yeah, that's actually based on that speed, that dynamic, yeah, that's very viable that they suffered the injury that they suffered.

SPEAKER_00: 16:29

So who should somebody go to then? Obviously call the police, but if you're if you've been hit, that's a good topic. Should you go to a doctor first to start the paper trail? If you're hurt, yeah, like so if you're having symptoms, you know, from like barring if an ambulance has to come and pick you up. I'm just saying, like if you're okay, but you do have some pain. Yes, you doctor?

SPEAKER_01: 16:51

You only get one body. You only get one body, right? So if you suspect that you have some symptoms that are presenting themselves in a way that's like, man, I am hurt, and or I feel something off with my body. Go go call a doctor. Go. And a lot of times because adrenaline or because other reasons, like they don't present until the next morning you wake up, yeah, and adrenaline has subsided, and all of a sudden you're thinking, oh no, right, it's hard to get out of bed right now. Yeah. I would always say, even if the ambulance doesn't respond, well, low impact collision, ticket gets written, police parties go their ways, but you're still having like some kind of symptoms after the fact, absolutely call. And then just always say, just follow the recommendations of your medical provider. I'm not a doctor, I don't pretend to be, but I do know that you know good care is needed oftentimes after wrecks. And even symptoms can present themselves days a day, a couple days after for somebody that's been in a wreck.

SPEAKER_00: 17:47

It wasn't that way before the wreck. And that won't, okay, that makes sense, but that won't affect the case negatively or positively if I go to a provider. Like I didn't have to call the police, then number two, get a lawyer to tell me I had to go, then like I don't have to follow a list or the case gets thrown out if they're say if there was a case. No, not at all.

SPEAKER_01: 18:08

Like in and always say if you need treatment, get it. Like go get treatment. And so a lot of times we don't get involved until months after a wreck happens, and somebody's been going through this process of trying to rehabilitate and get better, and you know, or they they broke something or they just had a horrible TBI concussion. Yeah. And we get involved late, so we're not even in, I'm not even really engaged in the medical process until I get the medical file and have a better understanding of what they're under a care already. That's right.

SPEAKER_00: 18:39

Is there any last question on this? But I'm just it's so intriguing. Is there anybody they can go see that would affect the case negatively? Such as, I just heard this, if you go see a chiropractor, that can hurt because I guess if they're not an MD, that type of thing. Like so now they start seeing you for pain and they're giving you whatever adjustment, and they're you're they're not looking at it holistically. Yeah, can that hurt the case?

SPEAKER_01: 19:12

Uh it depends. I mean, I wouldn't say just by virtue of having a chiropractor. I mean, people love their chiropractors, like some people have lifetime chiropractors, they love them, they visit them, they get adjustments. Um, you know, my paralegal is married to uh an amazing chiropractor. We have a guy that um or we know him well, and and we love to hear about what he does and to help people. So I would say from a chiropractor's perspective, if somebody has a chiropractor that they want to go see, yeah, that's fine. I'm of the mindset that it is good ultimately, initial either initially or ultimately to go see a medical doctor because they can put hands on in a way, do scans that need to be done, make sure that everything's in its proper place for more of a long-term care thing. MRI and CT and all that stuff. Because again, you only get one body, make sure that that impact doesn't impact other areas of your life and that you can continue to go on. And sometimes a scan, a simple scan, will tell you that.

SPEAKER_00: 20:11

Yeah.

SPEAKER_01: 20:11

Um, and or some things that you know just a doctor's trained to draw out of you in their subjective, like in when they're talking to a patient. So I would always say if you have been hurt and need to go to the hospital and feel like you need to go to the hospital, go to the hospital. No problem. As far as a follow-up, I would say look for an orthopedic doctor, depending on what the need is, go to a medical doctor for a follow-up just to make sure everything's okay. Yep, everything's in its right place. Because you want to make you don't want to mess with that, right?

SPEAKER_00: 20:41

Awesome. Very, very helpful. Okay, last takeaway. Yeah. So you've got people out there across the, I mean, all over the place. They got the person who calls, maybe they overcall, they get a little stub toe, and they want to and it happened at CVS and they want to call you because and you got that person, but then you got people that just aren't gonna call, and hopefully this message makes it to them, or this this podcast makes it to them because they should all call, really. But I think a lot of people, myself included, would be like, oh man, if I call a lawyer, the bill that the meter starts the second somebody says hello, yeah, and it's gonna be an$1,100 phone call. I fear that, right? Right? Yes. Set us all straight, all across the board.

SPEAKER_01: 21:29

So there are lawyers that when you call them, the bill the meter starts. On the personal injury side, where we help folks that have been catastrophically hurt, families, family members of somebody that lost a loved one. We do not bill our hours. In other words, when you call me, the clock's not running. And in fact, I probably talk to five, six individuals that have potential client that are potential clients with potential cases, and I'm not charging them for my time.

SPEAKER_00: 21:56

A day? Like five, six a day.

SPEAKER_01: 21:59

Or other lawyers that say, Hey, I've got a case. What do you think about it? We should look about this. You know, would you consider coming on? So constantly having those conversations. Yeah. I don't punch a clock and say, All right, you're on the clock. I'm gonna send you a bill for my advice. So for my consult. So that is a common misconception because I work on a contingency fee, which means I'm incentivized to get you as a potential client the best possible possible result. Okay. Because I don't get paid unless the client gets paid, and I get paid last. Okay. Right? So you're not on the clock. There are some sim, you know, scenarios where another lawyer that I'm against acts improperly and I can I can bill hours in that regard, but that says to the other lawyer, right? Not to the client. Yes, exactly. Not to the client. That that I'm so glad you brought that up because people are like, if I call a lawyer, am I gonna be in the red just for making the call? For us, no. Like we're doing consultations all the time. Those are free, right? Yeah, those are part of the process to determine if somebody has a case. Right, right. And and we do that literally, like I said, multiple times a day. Multiple times a day. So I say all that to say, like, I've literally had a family that had a catastrophic injury, literally, leg, no no leg anymore. Like got hit, doesn't have a leg. Okay. And they were initially hesitant to call a lawyer because they're they had a great case. But they're like, we are not litigious people, we don't want to call a lawyer. Is it if we call a lawyer, are they gonna charge us? There are common misconceptions for those that are have gone through a traumatic event because they're like, I don't want to be, I don't like to sue people, and we may have to sue people. That like that happens all the time. And so I'm so thankful to meet folks like that because we don't want we don't want litigious clients, for one, that's already had six cases before we ever meet them. Right. One, but two, I I love their heart and their spirit to say, look, something really bad has happened to me, yeah, and I need help and direction. And a lot of times I say, Hey, we don't, just so you know, we're I'm I'm not charging you for this conversation. Like this is a conversation for me to get to know you and to understand what happened and to see if I can advise you and represent you, you know, zealously. Yeah. Does that make sense?

SPEAKER_00: 24:14

That's incredible. Yeah, man. I hope this gets to just so many people because it I think the line share people think a meter's running. So I'm glad to hear that. Just unpack last thing. What does a contingency actually mean? Contingent on the recovery.

SPEAKER_01: 24:31

So, in other words, if no recovery, I don't charge a fee. So there are times where nothing. No hill. So I'm gonna spend 10,000 hours and ten thousand dollars just trying to see if there's a case. Right. And if I don't come back with a gross recovery, there is no fee. The client owes me nothing, and that's expenses and any expenses that I've best in the case and a percentage, the contingency percentage. Got it. So our contingency is a percentage off of that gross, that gross amount. Off of the recovery.

SPEAKER_00: 25:02

Of the recovery, exactly. And no backdated, like, hey, since we won, I'm also gonna throw in the first hour of coffee that we had at my place to see if there was a case. There's no backdating or back billing or design. Yeah, that's when it was on. That's incredible. Absolutely. All right, man. Absolutely great. Hey, that was awesome. Yeah, it was great. Absolutely.