What do I do if I have been sued with a frivolous claim?

The dreaded “frivolous claim” is always a difficult situation. First, you have to show that it is actually “frivolous”, and second, you may still end up spending a fair amount on attorneys’ fees getting even a frivolous claim dismissed.

It is sometimes difficult to define what exactly is frivolous. In most lawsuits the Defendant feels that the Plaintiff’s claims are unfounded, but that does not necessarily make the claims frivolous. The Wisconsin Supreme Court in Stern v. Thompson & Coates, Ltd, explained:

A claim is not frivolous simply because there is failure of proof, a claim is later shown to be incorrect, or a claim is lost on the merits; however, a claim cannot be made reasonably or in good faith, even though possible in law, if there is no set of facts which could satisfy elements of a claim, or if party or attorney knows or should know that needed facts do not exist or cannot be developed.
Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 517 N.W.2d 658 (1994)

If it seems that the claim against you or your business is one in which there is no set of facts which could satisfy the elements of the claim, there are a number of tools your attorney can employ to try and resolve the matter and perhaps even entitle the Defendant to costs for defending the action.

Requests to admit, interrogatories, and even depositions are all strong tools that can be utilized to flush out what factual basis existed for the filing of the Plaintiff’s claims. If, after this discovery is completed, your attorney feels there was no basis for the Plaintiff’s claims, under Wisconsin Law the Defendant is required to give the Plaintiff what is known as a 21 day safe harbor to dismiss their claims before the Defendant can file a motion for sanctions. This can be a powerful motivator to resolve merit-less claims before either side incurs further costs.

Regardless of whether you believe the claim is valid or not, if you or your business has been served with a lawsuit you need to be sure to contact an attorney and be sure an answer is entered to preserve your right to defend the claims.

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