Excessive litigation and frivolous lawsuits are not a new phenomenon, and where such cases are particularly egregious, it may be possible to recover your expenses in defending against such claims.
What is Abusive Litigation?
What exactly qualifies as abusive litigation? And if you or your business finds itself targeted by an opponent intent on overwhelming you with excessive paperwork and legal fees, how do you defend against it?
At its core, abusive litigation is where a party brings a legal action or even just certain claims in an otherwise legitimate legal action against another party, 1) with malice and 2) without substantial justification. Such litigation involves raising claims that have little to no legal basis, often with the intent to pressure or harm the other party. It’s a tactic often adopted by unscrupulous litigants who will try to shake down the opposing party for a quick payout. The tactic works because defending claims can quickly become so costly and time-consuming that it’s often far easier (and cheaper) to settle than to fight. But filing a claim of abusive litigation puts the party who is abusing the legal process on notice that they could soon be facing a lawsuit themselves and may be held responsible for abusing the legal system. In Georgia, where a party raises a claim of abusive litigation and then wins on such claim, they will be entitled to all damages allowed by law, including their costs, expenses of litigation, reasonable attorney’s fees, and, as recently determined by the Georgia Supreme Court, punitive damages (awarded to punish a party for egregious misconduct and deter similar actions in the future).
A Real-World Example
Recognizing abusive litigation involves looking for red flags. Red flags here include the obvious, such as claims and counterclaims with no merit being raised, and the less obvious, such as the opposing party asking for concessions unrelated to the case at hand.
Recently, I defended a landlord against a tenant across multiple suits. The tenant raised dozens of baseless claims and counterclaims across these suits, including claims such as fraud, breach of contract, and age discrimination, despite the underlying matter being based upon a failure to pay rent. While the tenant had a right to raise any legitimate allegations which would support their claims, it became obvious that the tenant intended to abuse the legal system when they simply repackaged prior claims into new claims in new suits once they lost the first suit – a tactic which was repeated a number of times. This tactic was meant to buy time and wear down my client, both mentally and financially.
At that point, we informed the tenant that we would file an abusive litigation claim unless they dropped the baseless claims against my client. Though the tenant held their ground, our response encouraged the judge to review the previous cases and other ongoing matters, which ultimately accelerated the dismissal of the suit and saved our client time, money, and additional stress. In this instance, and in many others, the actual abusive litigation claim did not fully play out in the courtroom, but its ability to serve as a means to a desirable end was no less important than if it had.
Building the Case for Abusive Litigation
To raise an abusive litigation claim, the party being aggrieved by frivolous claims must first give the opposing party a 30-day notice, informing them that they will file the claim unless they drop their case or claim. If the abusive litigation is not withdrawn, the aggrieved party may file an abusive litigation suit following the final termination of the proceeding in which the alleged abusive litigation occurred.
Documenting the opposing party’s actions and behavior is crucial in building a successful abusive litigation claim. Keeping meticulous records of all communications, court filings, motions, and other relevant documents will ensure you have a strong foundation from which to make the case. Emails, texts, and internal memos explicitly calling for legal action are just some examples of evidence you may want to collect. Additionally, keeping an eye out for any witnesses who may be able to testify that the litigation was intended to cause disruption or embarrassment may prove invaluable.
It may also be helpful to build out a timeline of key events, taking note of suits or filings triggered immediately after actions such as ending a business relationship or terminating a lease. These could potentially point to a retaliatory motive, though it is worth recognizing that legitimate claims may arise at such junctures, so every situation must be analyzed from an objective perspective.
Defending Abusive Litigation Claims
Just as frivolous lawsuits with no merit can be easily filed, so too can groundless claims of abusive litigation be made in a “Hail Mary” attempt to try to railroad a suit that is legitimately supported by the facts. Here are a few ways to combat an abusive litigation claim if you find yourself in this scenario:
- Succeed in the original suit. Claims that succeed in the underlying case have some basis for a judge or jury to award the win, and therefore, it would be exceedingly difficult for the opposing party to argue that your claims were meritless;
- If you do lose the underlying suit, it may be possible to argue that the claims were raised under the genuine belief of having a valid claim;
- Additionally, if you’ve lost the original suit, it may be possible to argue that the claims you raised were made in a good-faith effort to establish new law; and
- Lastly, and perhaps most importantly, during the original suit, if you are uncertain as to the validity of your claims, it is important to review and determine whether your claims are valid because it is a defense to a claim of abusive litigation to voluntarily withdraw the meritless claims within a certain time frame.
If you are dealing with a case where you believe the opposing party is abusing the litigation process, we may be able to help. To learn more, click here.
