We have all heard of Frivolous Lawsuits, but how many of us have heard of Frivolous Defenses? We should all be equally against Frivolous Defenses as we are with Frivolous Lawsuits. Why? Because a Frivolous Defense gets no further to the truth than a Frivolous Lawsuit by not being fair, equitable or furthering the community interests of maintaining an impartial and balanced court system. Just like we want credible lawsuits to move forward when necessary, we want credible defenses to those lawsuits when necessary. Just like in Contract law we have a fair "quid pro quo" ("something for something"), which created in Contract law the concept of not supporting "unfair advantage" in any contract dealing. In essence, our entire justice system is based on reciprocal fairness of the parties. Our San Diego personal injury lawyer explains further.

What is a Frivolous Defense?

A Frivolous Defense is when an insurance company defense lawyer employs arguments that go way beyond the lines of equitable and fair play when defending a lawsuit. Since I do all injury cases, I will use an example of a car crash case. Let's say my client treated his injuries from a car crash for over 2 years, and within that time, he underwent painful pain management procedures (raido frequency ablation therapy), and ulimately had to have a back surgery. At time of trial, the defense tries to call the same client a malingerer, or someone who is exagerating their injuries because of some psychological reason when there is no real evidence for making that conclusion.

Essentially the defense is coming very close to actually calling my client a "liar, cheater or fake;" thus, my client is being victimized twice: once from the car collision itself, which comes from the unsafe choices of the defense's client who caused the preventable collision, and then by the defense lawyer in trial in front of a jury. It is not a "fair fight" because the defense is trying to hit "below the belt." The jury is deserving of a fair fight as that is the foundation of why we have the adversarial legal system we have in America. 

Another analogy is warfare. In war, one army attacks another, but the armies (usually) do not support genocide to happen. The "rule of reciprocity" is wired into us when we deal and cooperate with each other, whether it is commercial transaction, lawsuit, or just being neighborly. This is why it is vital that we abhor Frivolous defenses when we see it. It goes against our sense of fair play just like a frivolous lawsuit does. 

When is a Frivolous Defense used?

Whenever the defense has nothing else to defend on such as the real facts, events or witness statements, I find that they will then make the fateful decision to dance around the real facts by using the example above. They are basically "grabbing at straws." What this translates to is the defense really should have fairly settled the case prior to going to trial, and for whatever reason, they chose not to. Sometimes the insurance company has too many people trying to make a good decision, and a fruitful one never gets decided. Confucius once said, "when you chases two rabbits, you end up catching none."

In the end, the insurance company and their defense lawyer waste time, and usually the jury gives more in their verdict than the case may have ultimately settled for, and the insurance company ends up paying more in costs, to both sides. Yet, they still forced the issued and tried using a Frivolous defense. So, beware this in case you find yourself on a jury and the defense is trying to use this deceptive tactic. 

Do you want to learn more? Or, maybe you are in a position right now where you feel this is happening on your injury case. If you have questions, please feel free to reach out to me at 619.813.7955. I take calls like yours all the time, and I would be happy to see if I can help you. Stay strong, Attorney Mark 

Mark Blane
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San Diego Personal Injury Lawyer | California Car Accident Attorney