13 Common Misconceptions About Lawsuits In America

We all have opinions on America's legal system, but many people form opinions without knowing the facts.

1.

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Malpractice insurance companies and their lobbyists would have you believe that most medical malpractice cases are frivolous, groundless and without merit. They've done a good job convincing the public (and even politicians) of this over the past several years.

The media also heavily contributes to this misconception by selectively reporting on only the most outlandish of cases. The truth is that ANYONE can initially FILE a lawsuit for any made-up reason. Do you really believe that baseless lawsuits make it to trial? Tip: they don't. Lawsuits without merit will simply be thrown out and immediately dismissed through a motion for summary judgment.

One other thing. If someone is injured, misdiagnosed, or has lost their life as a result of a medical procedure, this does not mean they automatically have a malpractice claim. In order for malpractice to have occurred, the doctor must have "provided care that falls below the accepted standard of practice in the medical community." These cases are hard to prove, and by no means has anyone ever won a baseless medical malpractice lawsuit.

Cases are decided by a jury of peers who listen to all the evidence from both sides before making a decision. If a jury says that a victim is owed money by someone else, you can be sure that they have a better understanding of the case than anyone on the outside.

2.

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A lawsuit generally costs around $200 to file yourself (although it's never recommended that you try your own case). Of course depending on the work which needs to be done, the costs can raise significantly. What many people don't know is that depending on the type of case you have, you may be able to file a lawsuit, perform an independent investigation, hire expert witnesses, and litigate for no out-of-pocket cost.

Cases which seek a monetary award (such as personal injury cases, claims of unpaid wages, etc) are most often taken under what is called a "contingency fee agreement." This literally means that the plaintiff (victim) pays nothing unless the case is won. I know it sounds like there's a catch, but I'm serious!

With a contingency-fee agreement, the attorney takes on all the risk. If the case is successful, you simply pay your attorney a percentage of the winnings.

Contingency fees are beneficial in many ways. For one, you and your attorney have the same goal; to get you the money you need as quickly and efficiently as possible. Your attorney will never drag the case out as their time is not billable.

Cases can sometimes cost hundreds of thousands of dollars to investigate and litigate, and most normal people do not have this kind of capitol to risk. With a contingency fee attorney, all of the financial risk is on the lawyer.

3.

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While a small percentage of lawsuits result in a long trial, the fact is that the vast majority of lawsuits filed (about 99%) are settled out of court.

Even when a case makes it to trial, the lawsuit can be (and often is) settled before a verdict is reached.

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This is a huge misconception, and one which causes many people to lose their case.

You only get one shot at a lawsuit, and you should not try to take on this responsibility yourself. I mean, would you perform surgery on yourself?

A non-attorney simply doesn't know the ins and outs of a lawsuit. Would you know how to respond to a list of admissions sent by the opposing counsel? If not, your case will be thrown out before it's even started.

Instead, talk to a few attorneys. You may find an attorney who will take your case on contingency, or even pro-bono (free).

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Unfortunately, this is never the case. You will never run into an insurance company who is willing to pay you for anywhere close to 100 percent of your damages.

In fact, it's a pretty common practice by insurance companies to claim responsibility (when it's obvious) in order to lull you into thinking they'll do the right thing. Unfortunately, just because someone accepted fault, does not mean they owe you ANYTHING. In fact, if you don't hire a lawyer, expect them to let you finish treating, drag your case out, and then only offer you a measly 5-10 percent of your damages.

There are no slam-dunk lawsuits.

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Lawyers get a bad wrap for the job they do. They clearly serve an important purpose, but they often get a bad reputation for performing their job. The truth is that many lawsuits need to be filed. Attorneys are only as "sue-happy" as defendants are "negligence-happy."

Lawsuits serve an important purpose. When someone wrongs you, a lawsuit is often the only way we have a fair chance at correcting it. These legal decisions affect not only the victim, but also those who would have also been victimized in the future had no action been taken. You can attribute many safety improvements and victims' rights changes directly to the result of a lawsuit.

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Every day that you wait to get started on your case, you're making it that much harder to prove. Witnesses start forgetting facts, physical evidence disappears, people move away, and surveillance tapes are erased.

On top of that, if you wait too long you will be barred from filing a lawsuit due to the statute of limitations expiring. This time limit varies from state to state, but usually ranges from 1-3 years, Of course if you wait 3 years to start your case, you're facing a VERY tough road ahead of you.

Additionally, if your claim is against the State or other government entity, you may only have a matter of WEEKS to file a claim before you're barred from doing so.

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Dram shop lawsuits are those filed against a bar or drinking establishment for their portion of liability an a drunk driving accident. Many people mistakenly believe that a lawsuit against the bar, club or restaurant only serves to remove blame from the drunk driver. This is completely false. A dram shop lawsuit serves to hold a business responsible for THEIR PORTION of liability.

Why is the bar to blame at all, you ask? Well, businesses which obtain a license to sell and serve alcohol are required by law to ensure that they are not endangering patrons and others in the community by serving people past the point of obvious intoxication.

The point is that bars should never place profits above safety. When they do, and someone is injured or killed as a result, they must be held liable for breaking these rules (rules in which they agreed to follow when they obtained their liquor license).

9.

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Class action lawsuits are the only types of cases that I can see where people would get this idea. Class action lawsuits often result in million or billions in damages awarded. Each participant may only make a few dollars, but the attorneys usually walk away with a large fee.

While this may look bad at first glance, you have to understand the purpose of a class action. Take, for instance, the recent lawsuit against Red Bull for deceptive marketing practices. Red Bull eventually agreed to settle and pay $13 million in damages. Each participant walked away with $10 while the attorneys reportedly kept $4.7 million.

Again, this probably looks bad at first glance, but consider the alternatives. Would it ever be financially smart for a single customer to sue Red Bull and their team of attorneys for $10? Of course not. If it weren't for class action lawsuits, companies would continue to use deceive consumers, charge unwarranted fees, etc.

What about the $4.7 million in attorneys' fees you ask? Well, first I'd like you to understand that class action lawsuits often require a TON of work and research. They can drag on for years, and require millions in expenses in order to prove the facts of a case.

Still think it's too high? If you can find a team of attorneys who will do the same job (just as effectively) for cheaper, then you may have a point. These cases require specialized attention and cannot be litigated by someone who does not have the experience and knowledge required to do so.

Do you feel that brain surgeons are also paid too generously?

10.

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While you're right in that you don't have to file a lawsuit in order to obtain a settlement, trying to negotiate your own settlement is just about the most ill-advised thing you can do in regard to your case.

Do you honestly feel that you have a chance at negotiating a fair settlement from the insurance company? THEY ARE NOT AFRAID OF YOU! They literally have no reason to fairly negotiate as you've never shown them that you're an actual threat in the courtroom.

The insurance company will likely throw out a minuscule settlement offer in HOPES that you come back with a counter. Countering their offer will only serve to limit your potential case value.

Say they offer you $1,000. You take it as an insult and counter with a demand of $10,000. Well now they have you on record saying that you would accept $10,000. If next week you discover that your injuries will require surgery or years of rehab totaling over $100,000, guess what?

11.

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This statement is simply an overreaction. Yes, an attorney may require a 25-40 percent contingency fee in some certain cases, but the settlement or award you receive will be FAR greater than anything you would have been able to do on your own.

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No you don't, and I'll tell you why...

In order for a car accident lawsuit to be worth $1,000,000, the damages related to the accident must rise to that amount. Most $1 million+ lawsuits either involve a wrongful death, or a life-changing injury requiring a lifetime of treatment.

Ask just about any victim who was seriously injured or lost a loved one in an accident. They would tell you that they'd trade in that money in an instant in exchange for what was lost. Lawsuits are retroactive and only serve to reimburse you for damages (losses) incurred. They should never be thought of as a lottery ticket.

13.

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Tort reform is a highly-controversial subject, and one that many people do not seem to fully understand. Tort reform measures are essentially changes to tort law which restrict an individual's right to sue, or limit the amount of money which can be recovered in a lawsuit.

Tort reform is usually touted as a solution to limit the amount of (perceived) frivolous lawsuits. Problem is, they really really only serve to help insurance companies reduce their liability.

Texas passed sweeping tort reform laws in 2003 which were supposed to reduce the number of frivolous lawsuits doctors face, while also reducing the overall cost of healthcare. Well, 11 years later, healthcare costs have not gone down (surprise). More troubling though, is the fact that there is now an arbitrary cap on non-economic medical malpractice damages of $250,000.

Caps on damages literally ONLY serve to punish those who were the most-severely injured. How on earth would a cap on the total amount recoverable ever reduce the number of frivolous lawsuits? These caps ONLY apply to valid cases which garner a jury award over $250,000.

What if a doctor's inexcusable error causes paralysis to your 8-year-old child? Do you think that the most she should be able to recover in non-economic damages is $250,000? If the jury says a victim is owed $1 million, why should that be reduced down to some arbitrary number that a couple of lawmakers came up with?

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