Orlando partner Matthew Julian was quoted in a July 28, 2008, article, Presence of Malice," which appeared on Newsvine.com
The article considers the question of whether frivolous lawsuits are a morality issue for attorneys and their clients, or if judges should take matters into their own hands and sanction guilty parties for blatant "misbehavior."
According to the article, despite the best efforts of attorneys, most legal cases are not clear cut and need to be argued in fairness. Whether or not someone is named in a lawsuit often comes down to perceptions of reality, which can vary significantly during disputes. But with so much at stake, it might be prudent for attorneys to take due diligence a step further. "With these statutes and sanctions, attorneys have been put on notice," said Julian. "It might be wise to do some form of investigation on your own to make sure your client is being accurate and truthful. The more you dig, the better." Julian believes that using best practices can protect attorneys from getting in trouble. He recommends attorneys perform pre-suit due diligence, which includes:
If you perform these tasks and still feel comfortable about the case, explained Julian, you can file a claim and move into the formal discovery process, an absolutely fundamental part of litigation. During discovery, you have an opportunity to have the defendant answer written questions, ask for all relevant documents from the defendant, and depose all witnesses under oath. In doing so, you can investigate both sides of the story and make a decision at that point. You can still withdraw if you feel the case has no merit. "Do your job to the best of your ability, and do your homework on the legal side as well," stressed Julian. "Make sure law exists that supports your claim. If you act in good faith, you can protect yourself from sanctions and/or counterclaims associated with frivolous behavior."