Not long ago, Colorado discouraged frivolous or speculative lawsuits. But such safeguards have been eroded. The penalty for filing a lawsuit that is frivolous, groundless or vexations (Section 13-17-101, C.R.S.) is so seldom invoked by judges that it’s essentially a dead letter.

Now comes House Bill 1272 (Reps. Gonzales-Gutierrez and Benavidez; Sens. Gonzales and Rodriguez) which would implicitly encourage frivolous lawsuits by ensuring that plaintiffs who file implausible claims are never responsible to pay the legal costs incurred by a defendant who is dragged into court on dubious grounds.

Civil litigation in our state is a field increasingly tilted to favor plaintiffs. Numerous bills passed over the past three years have required losing defendants to pay attorney fees and costs to winning plaintiffs – even if the defendant had a strong case and loses on a close call.

HB 1272 shafts the defendant again by taking away the ability to recover attorney fees and costs even when the plaintiff’s claims are so flimsy or baseless they cannot survive a motion to dismiss.

Consider that for a defendant to win a motion to dismiss, the court must assume that ALL of the plaintiff’s claims are true and must construe all other assumptions in the plaintiff’s favor. If a plaintiff’s claims aren’t plausible even when assumed to be true, then these claims are, in fact, frivolous.

HB 1272 would entirely repeal Section 13-72-201, C.R.S., which is an important tool. It encourages counsel for both parties to confer to consider an early, efficient, inexpensive resolution which is good for an injured party. Also, the statute encourages plaintiffs counsel to have a hard conversation with a potential plaintiff when it is obvious that the case simply lacks merit and is destined to fail – i.e., that it is a waste of time.

Finally, keep in mind that a motion to dismiss occurs early in the legal process – before an attorney’s billable hours are greatly enlarged by time-consuming discovery. So, a losing plaintiff won’t be on the hook for monstrous legal bills.

If it is ever just to require the plaintiff to reimburse the defendant’s legal bills, it is precisely when a plaintiff’s claims are so meritless that they cannot survive a motion to dismiss.

Passing HB 1272 will invite plaintiffs and TV lawyers to file baseless lawsuits knowing they can use the threat of running up legal fees as leverage to seek a quick settlement.