One of the surest topics on which to get agreement is that we should punish the filing of “frivolous” lawsuits. There are legitimate debates to be had over the definition of “frivolous”, who decides what is “frivolous”, and what the punishment (usually called a “sanction”) should be. For years, and for very good reason, there has been wide agreement that it’s best to leave these decisions to the judge on the case. Because he/she is in the best position to know whether a lawsuit is so lacking in merit (so “frivolous”) that it does not deserve to be in a courtroom, and if so, what the sanction should be for the party and/or lawyer who filed it.
As a lawyer who mostly files (rather than defends) lawsuits, I completely agree with the sanctioning of those who bring frivolous cases to court. Why? Because they not only bring discredit to my profession, but they occupy the taxpayer-funded resources of the court with cases that don’t deserve them, thereby making those resources unavailable (or less available) for those cases that do deserve them.
And I also agree that it must be the judge on the case who decides what is “frivolous”, whether there should be a sanction, and, if so, and what the sanction should be. This does not work perfectly, of course-nothing does-but I don’t believe there can be any responsible doubt that the judge is in the best position to make these decisions. That judge is in the best position, for example, to decide whether the lawsuit stretching the legal precedent is just a meritless money grab by an unscrupulous lawyer–who should be sanctioned– or a good faith effort by the lawyer to try to expand the law to help the powerless in society. In which case, no sanction should be imposed. Because some of the most important legal cases in our history started out with good faith efforts like this.