【Episode 26 – Frivolous Litigation (3)】
“No, how was I supposed to know he was a lawyer or that he had a trial that day? Good grief.”
“So you’re saying you didn’t know? Then what about the employee who was waiting tables that day?”
“The part-timer didn’t show up that day, so I served them myself.”
“Ah, yes. And you said, ‘It’s hot, so be careful.’ Is that correct?”
“I did. I say that to every customer. I said it to that man that day, too. If my memory serves me right, he probably answered, ‘It’s okay.’”
“That seems like an important point. Is there anyone besides you who might have heard his answer?”
“No. Ah, no. There was someone who came with him then… But well, they came together, so they’d take his side.”
“So there was someone who came with him? We’ll give that some more thought.”
“Yes. Please, please do. …Did you say you were NYU Law School students?”
“Yes.”
“Please, please help me. I can’t afford a lawyer. I took over this shop two years ago and was just starting to make a living…”
“To do that, you first need to file a request with NYU’s Pro Bono Placement.”
“I will. Of course I should. Since you’re willing to help. *Sigh*—like they say, maybe I ought to hold a shamanic ritual or something. No, even if I wanted to, there’d need to be a shaman in New York. Anyway, since I’m requesting that pro bono thing or whatever, please think of it as helping a poor soul and help me out, all right? Hm?”
“Don’t worry. We may be students, but this hyung is a lawyer in Korea.”
“Ah, really? You’re a lawyer. Oh my—you have such a kind face, Attorney. Please, please help me.”
“Ah, yes. I understand.”
The facts of the case were similar to the 1994 Liebeck v. McDonald’s case.
A few months prior, a man had visited a Korean restaurant in Koreatown with a companion and ordered food. Despite the owner’s warning that it was “hot,” he hastily ate the food and burned the inside of his mouth.
His injuries were far less severe than in the McDonald’s case, and the man was young, in his thirties, so he recovered quickly. The problem, however, was that the man was a lawyer by profession and had had a trial on the day of the incident.
The man had burned his tongue that day and been unable to speak properly, thereby ruining his trial. He was now demanding $7,200,000 from the Korean restaurant for medical expenses and damages.
“This case doesn’t look easy.”
On the way back from meeting the restaurant owner, Dong-uk hyung wore a troubled expression.
“You looked up which law firm the opposing party works at? It was Davison.”
He was a lawyer at a large law firm called Davison, Dunn & Hamilton LLP.
“Well, even granting that, what the opponent is claiming in the complaint is that the owner’s words, ‘It’s hot,’ were understood not as ‘hot’ in temperature but as ‘It’s spicy,’ meaning ‘spicy hot,’ so to speak. That changes the story entirely.”
The man had filed a lawsuit against the Korean restaurant, and the owner, who was unfamiliar with New York litigation procedures, had already missed a deposition once due to his ignorance.
“I think we need to look into that further. He could be lying.”
“Even if it is a lie, I don’t think it’ll be easy to prove.”
“For now, I think we need to find out who the companion was that day.”
“Ah, this doesn’t seem like it’ll be easy.”
Dong-uk hyung, who had considerable practical experience, seemed to feel far more pressure than Sein, me, or Michael.
“Honestly, under Korean law, this kind of damages claim is impossible. First of all, the likelihood of a domestic court accepting a claim for medical expenses for burning your mouth on hot Gukbap is slim, and on top of that, ‘I ruined the trial because I burned my tongue?’ That’s a ridiculous claim.”
But in America, it was possible.
Gukbap was not a widely known dish to begin with, and if the causal relationship between the accident and the damages could be proven, it could very well be accepted.
Above all, wasn’t this the country where jurors handed down a verdict of roughly 3 billion won in punitive damages even in an accident where someone spilled “hot” coffee on themselves due to their own carelessness?
“But this is America. Anyone can see that a guy who knows the law inside and out is trying to harass us with a lawsuit to squeeze out a big settlement, and there’s no way to stop him, is there?”
America is a litigious nation.
Tens of millions of lawsuits are filed every year.
According to a study published by a Harvard Law School professor, as of 2010, 5,806 lawsuits were filed per 100,000 people in the United States. This figure was overwhelming—approximately two to as many as four times the number of lawsuits filed in the United Kingdom, France, Canada, Australia, and Japan that same year.
It was easy to see why there were so many lawyers in America.
But just how many of those countless lawsuits were genuine?
Was it because people in other countries disliked conflict and were more forgiving than Americans?
I didn’t think so.
The research report itself noted that the category of cases with a markedly higher proportion in the United States compared to other nations was not traffic accidents or contract disputes, but lawsuits demanding punitive damages.
“How about arguing frivolous litigation?”
“Frivolous” is an adjective meaning “reckless” or “trivial,” but when used together with “litigation,” meaning “lawsuit,” it takes on a special meaning under US law.
Frivolous litigation—that is, a “frivolous lawsuit” or “reckless act of litigation” with no legal basis whatsoever that cannot be won.
If a court determines a particular lawsuit to be “frivolous litigation,” the suit is dismissed, and the party who filed it must compensate the defendant for legal fees and damages caused by the litigation. In severe cases, they may even have to pay punitive damages in reverse (through a separate lawsuit).
“Frivolous litigation?”
It was a concept that did not exist in Korean law.
Malicious prosecution was somewhat similar in logic, but it was a separate concept called “Malicious prosecution,” and since it was related to criminal proceedings, it could not be said to be the same.
That was why Dong-uk hyung could not be certain.
Although his qualifications were useless in the United States, my hyung, who was a full-fledged attorney at a large law firm in Korea, was desperate to help the restaurant owner.
However, from hyung’s perspective, the lawsuit itself was absurd, and the method of defending against it was also unfamiliar.
It seemed likely to become a fight over whose word to believe, and in that case, the opponent, being a lawyer, appeared to have the advantage.
“Is it something like alleging false accusation in a civil suit? I feel like I’ve heard of it somewhere.”
“It’s similar, but slightly different.”
“It’s the argument that a baseless lawsuit should be dismissed, right?”
Sein actually knew a bit more.
“Yeah, that’s right.”
“I heard about it in Procedure class. But the professor said arguing frivolous litigation is trickier than you’d think—would this case really qualify?”
Under US law, for a frivolous litigation claim to be upheld, two requirements must be met. First, the plaintiff’s claim must have absolutely no legal basis, and second, the plaintiff’s probability of winning the lawsuit must be zero.
In other words, they had to prove that the lawsuit had been filed solely to harass the opposing party.
“It qualifies.”
Had I spoken too strongly? At my confident answer, Dong-uk hyung, Sein, and Michael looked at me with wide eyes.
“Really?”
“How?”
I knew how this case would unfold in the future.
If things proceeded as originally intended, the lawyer bastard would win at the first and second trials. But at the third trial, a very special witness would appear, and the result would be reversed.
“I know the woman who came with the lawyer that day.”
A woman who could testify that when the Korean restaurant owner warned, “It’s hot, so be careful,” that day, the man had understood it correctly as “hot” in temperature, not in the sense of “spicy.”
I knew that woman.
Or rather, more precisely, I knew what that woman knew.
“Who is she?”
“Samantha Chen.”
Frivolous Litigation (4)
Following our advice, the owner of
Even though representation would be under the supervision of a pro bono director or professor, the ones actually handling and proceeding with the case were law students, not yet attorneys, so not every application was accepted.
For example, they excluded criminal cases and likewise rejected civil applications with large claim amounts.
It was only natural. For such serious matters, it was the wise choice to retain a proper attorney.
“This case is a no. The claim amount is too large.”
“We understand. But the client cannot afford to hire a lawyer, and his desire to have us represent him is clear.”
“Still no. You’re not lawyers; you’re law students. First-years who just got in, at that. The lawsuit amount is 7.2 million dollars. Get a grip. Someone’s life is on the line.”
“We are well aware of that. But this case is an obvious frivolous litigation case, and we can get it dismissed.”
“No. I know that. No more discussion! (Don’t even think about arguing with me over this anymore!)”
I was confident we could win.
Because I knew the future.
But I encountered unexpected resistance from the office.