He suspected the mothers’ exposure to ammonia and carbon dioxide at the food processing plant where they worked caused the birth defects.

An associate at the firm attempted to find whether any medical or scientific studies had linked genetic defects to these chemicals. Although none could be located, the lawyers thought perhaps they were on the cutting edge of new toxicology and epidemiological findings.

They filed a lawsuit, perhaps earlier than desired, because of a statutory change in comparative negligence taking effect in two weeks that could limit the plaintiffs’ recovery. The complaint also stated a claim for violation of the Wisconsin Safe Place Act.

The defendant corporation immediately retained national and local counsel, as well as a public relations company, an expert in environmental and infrastructure consulting and a private investigation firm. Rather than immediately hire experts, plaintiff decided to commence discovery to uncover some important facts.

Through discovery, the defendant turned over 200,000 documents. After pouring over those papers, the plaintiff’s firm decided to voluntarily dismiss the case rather than hire experts to establish what may have been a difficult causation standard, weighing the risk of recovery against cost.

The defendant immediately filed a motion for sanctions; and the Wisconsin Supreme Court upheld the circuit court’s finding the plaintiff’s firm liable, not for the filing of a frivolous lawsuit, but for the continuation of such an action. As a result of the court’s decision, lawyers in Wisconsin apparently cannot rely on discovery but rather may be forced to conduct extensive inquiry into the merits of a case to protect themselves from a claim of frivolousness.

The $716,081 reimbursement of defendant’s legal fees was remanded to the circuit court to discount the amount attributable to the filing of the lawsuit. Jandrt v. Jerome Foods, Inc., 227 Wisc. 531, 597 N.W.2d 744 (1999).

That’s a staggering penalty against a law firm that voluntarily dismissed a case, and it made me pause to think about how little we actually know about frivolous lawsuits. Reliable empirical data is extremely limited, and anecdotal accounts are often exaggerated. It’s a little like obscenity - I know it when I see it.

Concern about frivolous litigation was the catalyst for some significant procedural changes in the last two decades. Pleading requirements were tightened in civil rights, antitrust and shareholder derivative litigation.

In 1983 the Advisory Committee on Civil Rules overhauled Rule 11 Procedure to strengthen sanctions for frivolous filings. The Supreme Court of the United States broadened the availability of summary judgment in a series of decisions in its 1985 term in an effort to weed out frivolous cases before trial. And, "tort reform" measures began taking hold in state legislatures, creating in many instances a more onerous civil justice system for plaintiffs.

But how can sound policy be made on the basis of anecdote and conjecture? Certainly, more reliable measures of definitions are needed to properly regulate this area. Or, as in the Jandrt case, to allow lawyers, who believe they are acting in good faith, to know when they crossed the line. To do otherwise can have enormous ramifications in chilling legitimate claims as well as frivolous ones, as Chief Justice of the Wisconsin Supreme Court Shirley Abrahamson noted in her strong dissent to the motion for reconsideration of the issue: "The concerns we have expressed about determining creative claims or defenses are especially heightened in this case. The claim presented is complex and is seeking to prove a causal link between chemicals and birth defects that previously has not been established. Although the court’s decision focuses on the novelty of this claim and the plaintiff’s lack of proof of causation, it is often in such "toxic tort" cases that making new arguments is essential. Every toxic tort has a first case, and all of them are initially considered "novel." The recent tobacco litigation is a case in point. The defendant’s own expert in this case recognized that today there are 30 to 35 substances that are known to produce birth defects. A decade ago, the expert admitted, the number would have been fewer than 20. Often the science behind these advancements was developed or uncovered in response to litigation, some of which was unsuccessful." 601 N.W.2d 650, 652-53 (1999).

In Illinois, Supreme Court Rule 137 provides that a pleading must be "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 that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation . . ."

Take, for instance, the recent case of a Roselle woman who was injured when two unpopped, renegade popcorn kernels struck and burned her chest. In November, DuPage County Circuit Court Judge Kenneth Moy tossed out the lawsuit, as well he should. The plaintiff has pledged to appeal.

Generally, circuit courts are given wide latitude in determining if a suit was brought without reasonable inquiry into the facts and what sanction, if any, to apply. Because the sanction rule is penal in nature, it is strictly construed. But is also carries the caveat that sanctions must be reasonable in light of the attendant facts and circumstances of the case. Smith v. City of Chicago, 299 Ill.App.3d 1048, 702 N.E.2d 274 (1^st Dist. 1998).

To invoke a harsh monetary sanction of the magnitude of the Wisconsin Supreme Court operates as a penalty to the litigants at bar and may even close the courthouse doors for legitimate claims for those who fought so hard to establish legal protections - the injured, minorities, the disabled, prisoners. And that cost may be just too high for a society to hear.