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Legal VIEW

Frivolous Cases Can Lose Their Appeal

August 14, 1986|JEFFREY S. KLEIN

Everyone has the right to his or her day in court, and if you lose, you can usually take your case to a higher court. But if your appeal is frivolous, you may not only lose the case, you and your lawyer may have to pay a financial penalty as well.

At least since the days of Shakespeare, lawyers have been the brunt of public criticism. Lately, the insurance industry, court reformers and others have criticized lawyers for flooding the courts with too many meritless cases--turning every traffic accident into a lawsuit--and abusing the judicial system to harass others and delay justice.

Losing Patience

Just as the public's patience with lawyers has grown thin, so has the patience of appellate judges. And they are making lawyers pay the price. Increasingly, judges are willing to impose sanctions on lawyers and their clients for improper conduct, especially the filing of frivolous appeals. Penalties can range from $500 to amounts as large as $125,000.

American courts have historically been reluctant to penalize lawyers for pursuing their clients' cases vigorously. This was meant to encourage people to have their day in court, without fear that they might be punished for pressing their claims.

Unlike the British court system, where the loser must pay for the winner's legal fees, the losing plaintiff in the American judicial system loses nothing more than his pride and out-of-pocket expenses. (If the lawyer is being paid on a contingency fee--a percentage of the winnings--the cost of the case will not be very great.)

And the losing defendant can sometimes postpone paying damages to the plaintiff by filing frivolous appeals that will delay judgment day for years.

Since at least 1982, when the California Supreme Court offered its definition of a frivolous appeal--which could result in monetary sanctions--there has been a greater risk that you or your lawyer will be ordered to pay a penalty for filing a completely unwarranted appeal.

It is still the extraordinarily unusual case in which sanctions will be imposed, but before you order your lawyer to fight your case all the way to the Supreme Court, you should be sure you have a "colorable" claim--or you could be paying more than the lawyer's fee.

Besides, lawyers are not protected from an appellate court's wrath just because they did what their client told them to do. At least one California Court of Appeal has said lawyers have a "professional responsibility" not to file frivolous appeals or appeals intended merely to delay justice, no matter what the client tells them to do.

The California Supreme Court defined a frivolous appeal as one prosecuted for an improper motive--to "harass" or to "delay"--or as one that "is totally and completely without merit."

The Court did not want lawyers to be afraid to appeal even if they were unlikely to win; that would deprive their clients of their day in court. And so the court established a very difficult standard to meet before sanctions could be imposed: It was not enough, the court said, that an appeal be "simply" without merit, it must be "indisputably" without merit.

Alleged Misconduct

When is a case "indisputably" without merit? In one case, an attorney was forced to pay $500 after losing an appeal based on the alleged misconduct of the trial judge. The only misconduct alleged was that the judge had said "good to see you" to the other lawyer's client but not to his own client. In another case, sanctions were imposed against a taxpayer who challenged the constitutionality of the income-tax laws.

And then there was the taxicab driver who claimed his tips were gifts and should not be taxed as income.

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