The blame game: Lawyers split on whether frivolous claims make for strong cases or just legal harassment

Silicon Valley / San Jose Business Journal

streisandAfter taking more than 12,700 aerial photographs of the California coastline for the California Coastal Records Project — a thorough documentation intended to protect the state’s shorelines — retired Silicon Valley high-tech executive Kenneth Adelman was hit with a lawsuit.

Singer Barbra Streisand accused Mr. Adelman of invasion of privacy and violations of the state’s anti-paparazzi law after he took a photo of her beachfront Malibu home. Her estate was among thousands of photos posted on Mr. Adelman’s self-funded Web site,

In a lawsuit filed last May 2003, Ms. Streisand sought $10 million in damages and a permanent injunction against the display or dissemination of the photograph. Seven months later, a Los Angeles Superior Court judge dismissed the claims against Mr. Adelman and ordered Ms. Streisand to pay his six-figure legal bill.

While everyone has a right to access the legal system, lawyers say there is increasing public disenchantment with legal claims where one party blames another for his troubles. Oftentimes called “frivolous” or “unmeritorious” cases, these suits have sometimes resulted in huge monetary awards.

Consider the case of Andrew Burnett, convicted of animal cruelty for flinging a bichon frisé dog into traffic during a fit of road rage three years ago. Mr. Burnett last February sued the dead dog’s former owner and the San Jose Mercury News for causing him mental anguish and lost wages. He is asking for $1 million in damages.

Or a class-action suit filed last year against Palm after the handheld device maker announced one of its PDAs was unable to display about 7,000 of its 65,536 colors.

“It seems to me there is very little downside to filing a borderline frivolous case,” says Tim Roake, a partner who specializes in securities and corporate governance with Gibson Dunn & Crutcher LLP in Palo Alto. “I think courts bend over backward to try to give the other side their day in court and try to accommodate cutting-edge legal theories all at the expense of the people who get sued. At the end of the day, those people are out tens of thousands of dollars.”

Others say there are enough checks and balances in the court system to prevent unmeritorious claims from getting to the trial stage.

“It’s rare that a case that is really truly frivolous gets beyond the motions stage,” says Weldon Wood, a San Jose defense attorney with Robinson & Wood.

Personal injury lawyer Sal Liccardo agrees. “I have tried over 200 lawsuits to a jury verdict and never in 41 years of practice have I seen a true frivolous lawsuit ever go to trial or even proceed in litigation,” the Saratoga lawyer says. “I’ve seen such suits get thrown out very early on by the judge. For a frivolous lawsuit to ever get through the systems in the state of California is impossible.”

Santa Clara County Superior Court Judge Neal Cabrinha, who supervises the civil court calendar, says such claims filed in Santa Clara County Superior Court are few.

“I don’t frankly think there as big a problem as people seem to there is,” he says, adding that myriad safeguards against frivolous filings are already in place at the court.

He estimates more than 95 percent of Santa Clara County cases are resolved prior to trial.

But even one frivolous case is too many, says Santa Ana lawyer Patrick Long, a vice president for DRI, The Voice of the Defense, a 22,000-member organization that represents the interests of the civil defense bar.

Mr. Long says such cases “are driven by the creativity of plaintiffs’ counsels who are trying to come up with new theories of liability.” (Mr. Burnett is representing himself in the mental anguish suit.)

The bar should be raised, Mr. Long says, where cases would be required to meet a higher burden of proof before they’re even filed. And the first gatekeeper, he and others say, should be the lawyer.

“There are all kinds of sanctions that judges don’t hesitate to impose on any frivolous action,” says Mr. Liccardo. “A lawyer would have to be quite incompetent (to take on frivolous cases).”

The Private Securities Reform Act of 1995, which tightened the rules for shareholder lawsuits, curbed the filing of questionable securities cases for a time, but they have been on the rise again in recent years, Mr. Roake says.

That’s because there’s increasing pressure among defense attorneys to file counterclaims against plaintiffs — even when there may not be a legitimate claim behind such suits, he says. “There’s an economic element. There is a value to not defend the case (and settle instead).”

JENNIFER PITTMAN is a freelance writer based in Santa Cruz.

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