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People remain concerned about frivolous cases clogging the courts. What is frivolous can be a subject for debate. Rather than engage in that debate, I decided to try my hand at creative writing in an effort to illustrate some ways the civil-justice system discourages cases that should not be filed.

What follows is a completely fictional account in which the would-be plaintiff, Sam Suem, has decided to sue world-famous professional golfer Tiger Woods.

In this fictional account, Suem claims that Woods slammed him against his car and punched him on Feb. 24 in Savoy.

Having seen many television advertisements promoting the legal skills of trial attorney Lloyd “The Hammer” Hastings, Suem visits the office for a conference. He describes the incident and indicates he suffered bruising, pain and emotional distress. As an example of the latter, he points out that every time he hears CBS announcer Jim Nantz begin a golf broadcast with “Hello, friends,” he panics. Since Suem is a citizen of Illinois suing for damages that exceed $75,000 and Woods is a citizen of Florida, he knows he can file in U.S. District Court.

Hastings is interested until Suem mentions the date and place. Being an avid golfer himself, “The Hammer” knows that on Feb. 24, Woods was in a serious automobile accident in California and could not have punched anyone in Savoy on that date.

Sam cannot afford to

pay Hastings by the hour, and he is not going to take this case on a contingent fee. After all, any percentage of zero is still zero.

Thus, economics provides one barrier to the suit being filed. Furthermore, Hastings is mindful of the ethical rules and the consequences of violating them.

The third barrier to filing this suit on behalf of Suem is provided by Rule 11 of the Federal Rules of Civil Procedure, which requires Hastings to sign the complaint. By signing, he would certify that “to the best of (his) personal knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” certain things are true.

One of the things being certified is that “the factual contentions have evidentiary support.” (Other things that are deemed certified include a statement that the court filing is not made for an improper purpose, such as harassment, and that the claim is “warranted by existing law or by a nonfrivolous argument for extending or changing” existing law.)

Hastings knows that he could face sanctions from the court, so he declines to represent Suem. Suem is discouraged but not ready to give up. He knows he can file suit without an attorney.

The filing fee might keep some folks from going further, but Sam is indigent and qualifies for a waiver. Perhaps he was not listening when Hastings discussed Rule 11. As noted, that rule applies to lawyers who sign pleadings on behalf of clients. It also applies to individuals who are not represented by counsel.

After Woods is served with the summons, his lawyer files a motion seeking summary judgment. He provides an affidavit from Woods and his doctors. The matter is called for a hearing. The fair-minded but no-nonsense judge confronts Suem with the evidence and explains Rule 11 in terms that Suem gets loud and clear. He agrees with the judge’s decision to grant the motion.

While the judge may take into consideration Sam’s consent to end the case, she still will consider the consequences for running afoul of Rule 11. The range of possible sanctions is limited by Suem’s lack of resources.

A fine or order to pay Woods’ attorney fees is a possibility but likely ineffective. Concerned that Suem might come up with another bogus suit, the judge enters an order that he must submit future complaints to the court for review before they can be filed. This will allow Suem access to the courts but guard against the type of litigation Rule 11 targets.

In my time on the bench in the Central District of Illinois, I did encounter some cases that should not have been filed. There were not many. I could not recall such a case that was pursued by an attorney.

I do recall some brought by non-lawyers representing themselves (pro se). Typically, the person suing was long on anger and short on both evidence and the law. Suits filed by inmates made up a large percentage of this category.

People must have access to the courts. But similar to other rights and privileges, there are limitations designed to guard against abuse.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm. His email is askthejudge1@gmail.com.

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