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How Should Courts Handle Frequent Filers?
A Trampling Incident at a Florida Wal-Mart Highlights a Dilemma


Wednesday, Dec. 10, 2003

With the holiday shopping season upon us, it was inevitable that someone would get hurt. Sure enough, on November 28, Patricia VanLester, who was first in line for a $29 DVD player at a Florida Wal-Mart, was trampled by other eager shoppers. She had to spend two days in a local hospital's trauma center.

Although Ms. VanLester has yet to file a lawsuit, she has hired a lawyer, and who can blame her? Wal-Mart should have known that the enticement of DVD players for the low, low price of $29--I mean, they're practically giving 'em away--would prove too difficult for shoppers to resist. No doubt Ms. VanLester's suit, should she ultimately file one, will allege that Wal-Mart unreasonably failed to take adequate precautions to secure the safety of zealous shoppers from one another.

Except that, according to a December 6 wire story, Ms. VanLester has a knack for suffering--or feigning--injuries at retail establishments. She has made numerous injury claims, including nine prior claims against Wal-Mart. Ms. VanLester may be incredibly unlucky, and entirely truthful in her claims. Or she may be what lawyers sardonically call a "frequent filer."

Frequent filers pose a dilemma for the legal system. On the one hand, by bringing numerous, typically meritless claims, they impose a burden on courts' resources and on others who have suffered real injuries, yet may be suspected of feigning them, too. Accordingly, there is a temptation to punish frequent filers by limiting their access to the courts.

On the other hand, even frequent filers can be the victims of invasions of their legal rights. (As the adage goes, just because you're paranoid, doesn't mean they're not out to get you.) The courthouse doors cannot remain permanently closed to anybody, and sorting between frequent frivolous filers and everyone else is itself a costly enterprise.

The legal system can only respond to this dilemma imperfectly. In the end, preserving everyone's right of access to the courts means tolerating some number of meritless suits.

Financial Disincentives to Filing Frivolous Suits

In principle, no rational person would bring a lawsuit that is frivolous in the sense that it has no realistic chance of yielding a verdict for the plaintiff.

No lawyer should, in theory, file such a suit. Plaintiffs' lawyers who work on contingency--that is, for a share of the judgment if the case succeeds--are not going to front the money for a suit unless they expect a decent chance of a positive return.

Nor should any plaintiff, in theory, pay a lawyer's fees to file a frivolous case. Plaintiffs' attorneys who get paid by the hour are expensive to hire, and therefore a bad investment for a plaintiff with a hopeless case. Plus, state and federal courts require that civil plaintiffs pay a fee to the court as a condition of bringing the suit.

Collectively, these factors mean that a cool-headed plaintiff will not bring a case in which the expected outcome is smaller than the cost of litigation. And a recovery of zero dollars--the expected outcome of a frivolous suit--is undoubtedly smaller than the cost of litigation.

So why are frivolous suits nonetheless filed? Let's examine the possible reasons.

Suits by Indigents: Why Filing Fees Are Waived

Our justice system holds that access to the courts should not be made to depend on wealth. Thus, as a matter of constitutional law, criminal defendants facing the possibility of a substantial prison term are given free legal counsel. And civil litigants involved in disputes over fundamental matters--such as a divorce proceeding--are entitled to a waiver of the filing fee. (In this country, the Constitution has been interpreted to ensure that no one is "too poor to get divorced.")

Moreover, quite apart from these constitutional requirements, indigent litigants are often afforded the opportunity to proceed in forma pauperis--that is, to have filing fees waived. Needless to say, such "IFP" plaintiffs cannot afford to hire attorneys, and thus they invariably also proceed pro se--that is, on their own, without a lawyer.

Thus, a pro se, IFP plaintiff has little or no financial disincentive to bringing a frivolous lawsuit. He doesn't have to pay a lawyer, and he doesn't have to pay the filing fee.

But therein lies the difficulty. Because an indigent litigant proceeding without a lawyer typically lacks legal expertise, his legal papers will often appear frivolous even though he may have a valid legal claim. People hire lawyers to translate their unfortunate experience into the language of the law. Even a very intelligent layperson without legal training typically will not know what facts and issues to highlight in his legal complaint. And not every meritorious claim will be sufficiently lucrative to attract a lawyer willing to work on a contingent fee basis.

Hence, pro se, IFP plaintiffs have a financial incentive to file (or at least lack the financial disincentive not to file) more frivolous lawsuits than represented parties, but they are also more likely to appear to be filing frivolous claims even when their claims have merit.

Nonetheless, state and federal courts typically waive filing fees for indigent plaintiffs in part because there are other disincentives to filing a frivolous claim. Preparing and filing a lawsuit is a time-consuming enterprise, and the filing of a frivolous or malicious case can lead to fines or worse. Accordingly, the legal system has made the collective judgment that we can tolerate the occasional frivolous claim as the cost of affording equal access to justice.

The Frequent Filer Problem in Prison, and the Federal Response

Of course, for one class of plaintiffs, the fact that litigation is time-consuming appears not to be a problem: prisoners serving long sentences who complain about the conditions of their confinement and their treatment by the guards and their fellow inmates. Although lawsuits alleging and proving horrific conditions in our nation's prisons have played an important historical role in improving those conditions, for years our courts were seemingly deluged by prisoners' lawsuits alleging trivial harms--such as the accidental destruction of hobby kits--or fantastical events--such as mind control through telepathy.

The prisoners who file such suits are not typically bothered by the prospect of spending long hours working on their cases. On the contrary, they may view this prospect as a relief from the boredom of their daily existence. Nor are they deterred by the possibility of fines. They typically have no assets at all.

In response to these circumstances, in 1996 Congress adopted the Prison Litigation Reform Act or PLRA. The statute contains numerous provisions limiting the ability of prisoners to sue their jailers in federal court, including one requiring IFP prisoners to pay the full filing fee unless a judge decides to waive it. The federal filing fee of $150 is very serious money to prisoners, who earn far below minimum wage for prison jobs.

Another provision of the PLRA takes aim at frequent filers directly with a three-strikes-and-you're-out approach. A prisoner who has brought three prior frivolous, malicious, or legally meritless claims cannot even qualify for discretionary IFP status, "unless the prisoner is under imminent danger of serious physical injury."

The PLRA has succeeded in reducing annual federal lawsuits by roughly forty percent, although critics question whether it has unduly discouraged meritorious as well as meritless litigation. For example, an exhaustive study by Harvard Law Professor Margo Schlanger published earlier this year in the Harvard Law Review suggests, among other things, that prisoners are not actually more litigious than other people. Indeed, it may be that even before the enactment of the PLRA, the fear of retaliation by prison authorities discouraged the filing of lawsuits in a manner roughly analogous to the financial disincentives faced by non-prisoners.

Legally Valid But Factually Wanting Lawsuits

Whatever the virtues and vices of the PLRA, it has little bearing on cases like Ms. VanLester's potential suit against Wal-Mart. Most obviously, she is not a prisoner and is not, so far as it appears, otherwise eligible for a waiver of Florida's civil filing fee.

VanLester's cases highlight a somewhat different problem for the legal system. She is not someone who brings frivolous lawsuits, in the sense of cases with no legal basis. Retailers are generally responsible for injuries to their customers that result from unsafe conditions the retailers create or unreasonably fail to remedy. The apparent difficulty with VanLester's cases is that her suits may lack a factual basis, not that they may lack a legal basis.

Why does the distinction between factual and legal inadequacy matter? Because in the federal system and most states, legal questions can be determined by a judge acting alone after a brief hearing, while factual questions are decided by a jury after a full trial. Thus, a judge can dismiss a legally inadequate claim early in the proceedings, before expensive and time-consuming discovery has occurred. To determine that a claim lacks factual support requires much more time and effort.

Undoubtedly, the fact that someone is bringing her tenth claim against the same retailer would count against her credibility with a jury, but again, questions of credibility are within the province of the jury. And that points to a reason why a litigant might bring a factually, as opposed to a legally, frivolous claim: even if the plaintiff expects to lose at trial, the nuisance value of the claim--how much it costs to mount a successful trial defense--may lead the defendant to settle even a meritless claim.

We don't know whether Ms. VanLester, in particular, frequently files factually false claims, or is entirely truthful in her claims, and simply incredibly unlucky. We do know, however, that the frequent filing of factually false claims is ultimately a self-defeating strategy. Eventually, the frequency of filing itself comes to undermine the complainant's credibility, and at that point, defendants balk at settling for a case's nuisance value--for such a settlement would only encourage further nuisance suits.

Accordingly, our legal system tolerates the possibility of some number of factually baseless lawsuits as part of the price we pay to ensure that people who have in fact been wronged can have their day in court.

Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University.

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