| Return to opening page |
. |
|
Glossary of termsVexatiousVexatious litigation Abuse of process Malicious prosecution Frivolous lawsuit Barratry Champerty The above (a general guide) will be added to not only in number but in depth – in the large part, this glossary is taken from US court practice – it will be augmented by English and Scottish glossaries Pronunciation: (vek-sa'shus), —adj. 1. causing vexation; troublesome; annoying: a vexatious situation. 2. Law.(of legal actions) instituted without sufficient grounds and serving only to cause annoyance to the defendant. 3. disorderly; confused; troubled. Vexatious litigation is that which is brought, regardless of its merits (usually it has none) solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. It is an abuse of the judicial process and almost always brings down sanctions on the offender. Repeated and severe instances by a single lawyer can result in his eventual disbarment. In some jurisdictions, there is also a list of vexatious litigants, generally people who have repeatedly abused the legal system and who choose to represent themselves rather than employ a lawyer. Those on the list are in general forbidden from any further legal action or require permission from a senior judge to do so. The process by which a person is added to the list varies between jurisdictions. In English law and legal systems derived from it, a vexatious litigant is someone who is debarred from bringing a case to court because they have previously abused the legal system. For example, under California law (Code of Civil Procedure, section 391(b)) a vexatious litigant is someone in one of the following categories: 1.In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing. 2.After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. 3.In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay. 4.Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence. Abuse of process is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts. The elements of a valid cause of action for abuse of process in most common law jurisdictions are as follows: it is the malicious and deliberate misuse or perversion of regularly issued court process (civil or criminal) not justified by the underlying legal action. "Process" in this context is used in the same sense as in "service of process," where "process" refers to an official summons or other notice issued from a court. The person who abuses process is interested only in accomplishing some improper purpose that is collateral to the proper object of the process and that offends justice, such as an unjustified arrest or an unfounded criminal procecution. Subpoenas to testify, attachments of property, executions on property, garnishments, and other provisional remedies are among the types of "process" considered to be capable of abuse. Malicious prosecution is a common law intentional tort. While similar to the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting or pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, "malicious prosecution" is reserved for the wrongful initiation of criminal proceedings, while "malicious use of process" refers to the wrongful initiation of civil proceedings. Criminal prosecuting attorneys, as well as judges, are normally protected, by doctrines of prosecutorial immunity and judicial immunity, from tort liability for malicious prosecution. A lawsuit is termed frivolous if it is brought in spite of the fact that both the plaintiff and his lawyer knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying justification in fact based upon the lawyer's due diligence investigation of the case before filing (i.e. the well known U.S. Federal Rule 11). Since it wastes the court's and the other people's time, resources and legal fees, it may result in sanctions being levied by the court upon the party or the lawyer who brings the action. The standard references for legal terms--American Jurisprudence, Corpus Juris Secundum, amd Words and Phrases--contain no entry for "frivolous lawsuit" (although there are entries for "frivolous pleading" which means a pleading which is nothing more than a copy of a previous pleading, and "frivolous appeal" which means an appeal that has no chance of succeeding). In recent years, concerns about frivolous lawsuits have become a political issue, with various interests asserting that such litigation has increased the costs of goods and services, particularly in the health care industry. However, these arguments tend to misuse the term, applying it to suits in which excessive awards are reached by a jury. (In such cases, the jury didn't think it was frivolous.) Costs that are driven up by large jury verdicts can not be from frivolous lawsuits, because such suits will be discharged by the court before being considered by a jury. One area where frivolous lawsuits have been particularly burdensome on courts is in the area of in forma pauperis and pro se prison litigation. Because of the history of prisoners filing baseless suits (asserting for example, that their civil rights have been violated because they were given crunchy peanut butter instead of creamy) (note: a toothless prisoner cannot eat crunchy peanut butter), Congress passed and President Clinton signed the Prison Litigation Reform Act, which strictly limits the ability of prisoners to bring actions. Compare barratry, vexatious litigation, abuse of process and malicious prosecution. Stella Liebeck, the woman who spilled the McDonald’s coffee, was 79, in the passenger seat of a stopped car, and the coffee scalded her so badly that she suffered third-degree burns and needed skin grafts. During discovery, McDonald’s produced documents showing more than 700 claims from people burned by its coffee between 1982 and 1992. The judge reduced the jury award of $2.9 million in compensatory and punitive damages, and the woman settled for about $600,000. Two legal concepts go by the name barratry: one in criminal and civil law, the other in admiralty law. In criminal law, barratry is the act or practice of bringing repeated legal actions solely to harass. Usually, the actions brought lack merit. This action has been declared a crime in some jurisdictions. See also: champerty, SLAPP, vexatious litigation, abuse of process, malicious prosecution, forum shopping. In admiralty law, barratry is a fraudulent act committed by a master or crew of a vessel which damages the vessel or its cargo, including desertion, illegal scuttling, and theft of the ship or cargo. A third meaning also exists: the buying and selling of positions of authority, especially those within the church. This meaning is synonymous with simony. In law, champerty is the practice of participating in a lawsuit in order to share in the proceeds by a person not naturally a party to the lawsuit, that is, buying into someone else's lawsuit. This practice is prohibited in some jurisdictions; in others, judges are considered to have the responsibility for policing such behavior. |
||
| return to Vexatious Litigant index |
top |
|