Are you one of those Americans who say it's too easy to file a lawsuit? As I can tell you from personal experience, it's anything but. The canard that U.S. courts are jammed up by litigious jerks is based on anecdotes spread by corporate propaganda.
We do need "tort reform" -- but we should make it easier to sue, not harder.
What about all those "frivolous lawsuits" you're always hearing about? You hear about them because deep-pocketed corporations run TV ads complaining that they're being victimized by predatory trial lawyers. The truth is, big companies don't want to be held accountable in the courts for their misdeeds.
What most people don't know is that judges are good at ferreting out frivolous lawsuits before they get very far. If you get sued, the first thing your defense lawyer will do is file a "motion for summary judgment" -- a request that the judge throw out the case because it's weak. Between this and other methods of winnowing out bad cases, at least 95% of civil claims never make it to trial.
The dirty secret is that American courts have created so many hurdles to sue that it's become daunting for all but the most determined plaintiffs to pursue justice. My case against The Los Angeles Times illustrates how hard it is for an individual to sue a large entity.
Neither I nor Times readers were aware that there was a conflict of interest between the paper and the fuzz: the LAPD's union pension fund was a major shareholder of the Times' parent company.
It ought be to illegal for a government agency or an entity associated with a government agency to buy stock in a media company -- but it isn't.
The Times published an article accusing me of having lied in a blog post. I was able to show that I'd told the truth. But after I sent the Times the exonerating evidence -- which attracted worldwide media attention and calls for my reinstatement -- instead of issuing a retraction and giving me back my job, Times executives doubled down, publishing a second piece reaffirming the first one. In March 2016, I filed suit in LA Superior Court against the Times for defamation, wrongful termination, blacklisting and other charges.
As I expected, the Times' defense attorney filed a motion to dismiss my case on the grounds that it was not meritorious. The judge denied.
After that, California's legal and financial hurdles became nearly insurmountable.
When free speech groups like the Electronic Frontier Foundation get behind something, I'm usually all for it. The First Amendment is my religion. But speech advocates' support for a federal anti-SLAPP law is wrong -- and terrible for freedom of expression. Perhaps they haven't thought this all the way through.
Twenty-eight states and D.C. have passed anti-SLAPP laws. On paper, they sound great. A "SLAPP" (strategic lawsuit against public participation) is a lawsuit the plaintiff doesn't think he'll actually win. The purpose of a SLAPP is to harass you by forcing you to hire a lawyer and tie you up in court. It's an intimidation tactic sometimes used by big companies to silence individual whistleblowers and critics. Is the problem really widespread? No one knows. No one has done a serious study.
If you get sued in a state with an anti-SLAPP statute, your anti-SLAPP motion is a powerful tool. Discovery (depositions, subpoenaing of evidence) halts. If the judge rules in the defendant's favor that a suit is frivolous, the case gets tossed and the plaintiff pays the defendant's attorney fees. This is supposed to make jerky plaintiffs think twice before filing a SLAPP.