On more than once occasion, I have had clients say things akin to “well, can’t we just sue them and see what happens?” or “what if we just say that he/she did this, then they can’t win their case, right?” The answer to both of these questions is “no.” It’s my job as an attorney to counsel my clients that this is not ok. As discussed below, there can be serious financial consequences for both the client and their attorney because a frivolous lawsuit was filed or frivolous defenses were alleged. But when is a claim filed in a lawsuit or a defense considered frivolous under Michigan law? A claim or defense is not considered frivolous just because it is not ultimately successful. Whether something is frivolous is governed by Michigan statutes and the Michigan Court Rules.
The Michigan Revised Judicature Act, in particular MCL 600.2591, provides for sanctions in the form of payment of costs and attorney fees against a prevailing party and their attorney when a civil lawsuit or defenses to a civil lawsuit are determined by a court to be “frivolous.” Under the statute, “frivolous” is defined as one of three things:
(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
What this statute says, in a nutshell, is that if you sue someone or raise defenses against someone that has sued you without any factual or legal basis to do so or to simply spite that person, that there will be consequences for doing so. If you are the party that wins the entire case and the court finds that the lawsuit or defense to that suit was frivolous, it must assess costs and attorney fees against the losing party and their attorney.
The Michigan Court Rules are also a source for imposing sanctions based on frivolity. MCR 2.625(A)(2) states that “if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591,” which is the statute discussed above. This is also reiterated in MCR 1.109(E)(7).
There is another court rule that also addresses frivolity, but does not mention the word “frivolous.” MCR 1.109(E) addresses the effect of signing a document in a court proceeding. Every document in a court proceeding must be signed by a party or their attorney. The effect of a signature is that the person signing is a certification by that person of three things:
- That they have read the document;
- To the best of their “knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law;” and
- The document is not being filed/introduced “for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.”
If a person signs and submits a document in a legal proceeding that violates any of those three things, than that court, on the request of a party or on its own, “shall” impose sanctions against the person who signed, being if it was a party, their attorney, or both. However what that sanction has to be, is left to the court’s discretion. The court rule states that the court “shall impose . . . . an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Thus, the court does not necessarily have to award costs and attorney fees the party bore brunt of the wrong, it may not. It could award just costs, just fees, or neither. It could also, conceivably, impose sanctions that are nonmonetary.
Courts do not find cases or the defenses to a case frivolous on routine basis. In my entire legal career, I have had a court award my client sanctions due to frivolity only three times. Paying the other party’s costs and attorney fees can be a great financial hardship on a litigant as the amounts owed as a result can be substantial. It is my job as an attorney to advise you as to whether or not you have a viable claim or a viable defense. It is my job as an attorney to not file a case that has no legal or factual merit even if my client wants me to do so. I am governed by the law and by ethical rules that prohibit me from doing so. If I break those laws or violate those ethical rules, then I am on the hook for sanctions as much as my client. In addition, I could put my license to practice law in jeopardy.
Here at Tilchin & Hall, P.C., we value our role as counselor as much as we do our role as attorney. If you have a potential legal issue, please feel free to give us a call at (248) 349-6203 or email us below. We will gladly advise you how and if you should proceed.
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 The “prevailing party” is “a party who wins on the entire record.” MCL 600.2591(3)(b).
 MCL 600.2591(3)(a).
 MCR 1.109(E)(2).
 MCR 1.109(E)(5).
 MCR 1.109(E)(6).