“You can sue a ham sandwich”
I have jokingly said this to friends and family when they ask about a potential lawsuit. For the most part; it is true. If that ham sandwich had some ham bone in it with no warning and you choked on it, then there might be a case. Maybe the ham was spoiled and you got food poisoning, that might be a case. But when someone says you can sue a ham sandwich, they most likely aren’t concerned about the quality of your pork product. Rather they are illustrating a widely held belief that lawsuits are frivolous. My earlier post about the Liebeck case touched on this briefly.
Despite the perceived overly litigious nature of Americans, believe it or not, lawyers are compelled by the rules of professional conduct not to pursue claims that are frivolous. So why then is there a persistent belief that lawyers do file frivolous claims? That is too large a question to answer in a blog post, but at least part of the explanation lies in the harsh consequences of not suing. A few of those are outlined below.
Generally speaking, almost all causes of action (right to sue) have a statute of limitations. After a certain period of time, if you have not filed the case, you lose your ability to pursue that claim. It varies in each jurisdiction and it even varies based on who you are suing. One sure way to get a lawyers blood pressure rising is to mention the words tort claim notice and governmental entity. Thats because often governmental entities will require notice of a potential lawsuit within a matter of weeks from when the accident occurred. So, if an attorney gets a case a client sat on for a couple of years and finds out the statute of limitations is about to run, in order to protect himself and his client he may have to file the case without the full picture. It could so happen that claim turns out to not have any merit as the discovery process progresses. Of course the lawyer should withdraw from that case if it truly is merit less.
Sometimes it is hard to know who is at fault and everyone needs to be sued. The classic example is the case of Summers v. Tice. In Tice, Summers, a hunting guide, took two men hunting. A quail flew above the guide’s head and the two men shot at the quail; hitting the guide in the eye and face. In this situation how is Summers supposed to know who did it? After all, as the plaintiff, he has to prove who did it. Sue them both. The California Supreme Court came up with the doctrine of alternative liability and shifted the burden on the defendants to prove who caused the damage. Sometimes you have to sue everybody, and sort it out later. If Summers had only sued one of the hunters and later found out it wasn’t that hunter, that case would be dismissed.
These harsh consequences of not suing, everyone potentially liable, sooner rather than later, contribute to the overly litigious perception that you can sue a ham sandwich.
While being able to indict the other white meat may be viewed as a negative, quite frankly, some ham sandwiches need to be sued. Starbucks recently decided to sue its meat provider when their ham sandwiches were making people sick. Sometimes suing is about making it painful enough for someone or some corporation to change their dangerous practices through litigation. Preventing harm is one of the most laudable goals a litigator can hope to achieve.
So maybe its a good thing that even ham sandwiches are not immune from justice. Because if an inanimate object can be on the receiving end of a subpoena, then truly nothing is above the law.