FROM: Sandra Norman-Eady, Senior Attorney
RE: Remedies for Frivolous Lawsuits
You asked for the remedies available in other states for frivolous or vexatious lawsuits. You are particularly interested in laws aimed at deterring frequent filers of such lawsuits. You also wanted to know if Connecticut lawyers are subject to discipline for filing these suits and if Connecticut judges may be disciplined for failing to throw the suits out of court.
Most states, including Connecticut, provide remedies to the (1) prevailing party in a frivolous civil action or (2) person against whom a frivolous defense is raised. Typical remedies are court costs and attorneys' fees. In addition to statutes generally aimed at deterring frivolous civil lawsuits, a number of states address specific types of frivolous claims, such as claims brought by prisoners and suits filed against the state or against farmers alleging a nuisance. This report will address only the remedies for frivolous civil lawsuits.
In Connecticut, anyone, including lawyers, who begins a civil action or asserts a defense in a civil action without probable cause is liable to the prevailing party for double damages or for triple damages if the action was brought with malice to vex and trouble. The prevailing party may also file a grievance against the attorney for violating Rule 3.1 of the Rules of Professional Conduct. This rule prohibits lawyers from bringing or defending a baseless action or asserting or a frivolous issue.
The law does not require judges to treat frivolous cases any differently than other cases. Thus, there are no statutory remedies that apply specifically to judges who fail to throw out a frivolous case. Judges in all cases are expected to listen to and look at all the evidence before making a decision. This decision must be free of bias or outside influences. Parties unhappy with a judge's decision may file a complaint with the Judicial Review Council. After a hearing, the council may, if it deems it warranted, publicly censure the judge, suspend him for a definite term up to one year, refer the matter to the state Supreme Court with a recommendation that the judge be suspended for more than one year or be removed from office, or exonerate the judge of all charges.
REMEDIES FOR FRIVOLOUS LAWSUITS IN OTHER STATES
Any trial court in the state may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. “Frivolous” is defined as totally and completely without merit or for the sole purpose of harassing an opposing party (Cal. Code of Civil Pro. § 128.5).
The duty of a party to a lawsuit to raise meritorious claims applies at the start of the lawsuit. At least one attorney or the party if not represented by council must sign his name, address, and telephone number to every pleading, petition, written notice of motion, or other similar paper. By presenting the document to the court, the attorney or party certifies that to the best of his knowledge, information, and belief, formed after a reasonable inquiry, all of the following conditions are met:
1. It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in litigation costs;
2. The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the law's extension, modification, or reversal;
3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
If the court determines that a lawyer or party has violated the law, it may impose any appropriate sanction sufficient to deter repetition, including reasonable expenses and attorney's fees. In determining the sanctions, the court must consider whether the party seeking sanctions has exercised due diligence (Cal. Code of Civil Pro. § 128.7).
The court must award a prevailing party in a civil action reasonable attorney's fees if it determines that the action or the defense lacks substantial justification. An action or defense “lacks substantial justification” if is substantially frivolous, groundless, or vexatious. When the court assesses attorney's fees, it must allocate the payment justly among the offending attorneys or parties (Colo. Rev. Stat. Ann. § 13-17-102).
In Florida, courts must award attorney's fees to the prevailing party in any civil action or defense in which the court fails to find a justifiable issue of law or fact. The court must justly appropriate the fee among the losing attorneys or parties (FSA § 57.105).
Upon the motion of any party in a civil action, the court may determine, after a hearing, that all or substantially all of the claims, defenses, setoffs, or counterclaims made by any party represented by counsel were wholly insubstantial, frivolous, and not advanced in good faith. The court must include in its findings the specific facts and reasons on which the findings are based. If the court finds that a party's claim was frivolous, it must award the prevailing party reasonable attorney's fees and other costs and expenses incurred in defending against such claims. If the finding is made with respect to a party's defenses, setoffs, or counterclaims, the court must award the prevailing party (1) interest on the unpaid portion of the monetary claims at issue from the date the claim was due and (2) reasonable attorney's fees, costs, and expenses. The court cannot find frivolousness because a novel or unusual argument or principle or law was advanced (Mass. L. Rev. § 231-6F).
The court must require any party who initiates a frivolous claim, asserts a frivolous defense, files a frivolous motion, or cause proceedings to be had needlessly to pay the opposing party's costs and reasonable expenses, including reasonable attorney's fees and compensation. The law does not create liability for an attorney who in good faith acted at the specific direction of his client (MSA § 514.205).
After hearing a contract or tort action, a court may determine that the action or any defense is frivolous or intended to harass or intimidate the prevailing party. After making this determination, the court may enter summary judgment against the party who brought the action or raised the defense and award the prevailing party reasonable costs and attorney's fees plus $1,000. The court must also report the conduct to the state Supreme Court committee on professional conduct (NH Rev. Stat. Ann. § 507:15).
A judge may award all reasonable litigation costs and reasonable attorney fees to any prevailing party if he finds at any time during a civil proceeding or upon judgment that a complaint, counterclaim, cross-claim, or defense is frivolous. In order to find frivolousness, the judge must find based on the pleadings, discovery, or the evidence presented that either:
1. The complaint, counterclaim, cross-claim, or defense was commenced, used, or continued in bad faith, solely for the purpose of harassment, delay, or malicious injury; or
2. The losing party knew or should have known that the document or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
The party seeking the award must apply to the court that heard the matter. The application must be support by an affidavit stating in detail (1) the nature of the services rendered, the responsibility assumed, the results obtained, the amount of time spent by the attorney, any particular novelty or difficulty, the time spent and services rendered by secretaries and staff, other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, an itemization of the disbursement for which reimbursement is sought, and any other factors relevant in evaluating fees and costs; and (2) how much has been paid to the attorney and what provision, if any, has been made for paying these fees in the future (NJ Stat. Ann. § 2A:15-59.1).
In Rhode Island, attorneys representing parties to a lawsuit must sign their name, address, and telephone number on every pleading, motion, or other paper. This signature certifies that to the best of their knowledge, information, and belief, after reasonable inquiry, the lawsuit is well grounded in fact and is warranted by existing law or a good faith argument for the law's extension, modification, or reversal. It also certifies that the suit was not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increases in litigation costs. Courts may impose appropriate sanctions, including an order to pay the prevailing party's reasonable expenses incurred because of the action and attorney's fees, on any party that certifies a document asserting a frivolous claim (Gen. Laws of RI § 9-29-21).
In South Carolina, anyone who takes part in procuring, initiating, continuing, or defending any civil proceeding may be assessed all or a portion of the attorney's fees and court costs for the other party if (1) the proceeding was brought primarily for a purpose other than that of securing the proper discovery, joinder of parties, or adjudication of the claim upon which the proceedings are based and (2) the proceedings terminated in favor of the party seeking the fee and costs assessment (Code of Laws of SC § 15-36-10).
If a court dismisses a civil action or special proceeding because it is frivolous or was brought for malicious purposes, it must order the party whose cause of action or defense was dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorneys' fees (SD Codified Laws § 15-17-51).
The court may, in any action it determines was vexatiously commenced, award the defending party reasonable attorney's fees as costs to be paid by the plaintiff (Rule 3, Vt. Rules of Civil Pro.).
CONNECTICUT'S REMEDIES FOR FRIVOLOUS ACTIONS
In Connecticut, anyone who files or prosecutes a civil action or asserts a defense to such an action without probable cause must pay the other party double damages. If the party bringing the action or asserting the defense does so with the malicious intent unjustly to vex and trouble the other party, he is liable for triple damages (CGS § 52-568). A person lacks probable cause within the meaning of the statute if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. He acts maliciously if he brings an action or asserts a defense primarily for a reason other than to secure proper adjudication of the claim on which the proceedings were based (DeLaurentis v. City of New Haven, 220 Conn. 225 (1991)).
Additionally, parties against whom an attorney has filed a frivolous action may file a grievance with the Statewide Grievance Committee alleging that the attorney violated Rule 3.1 of the Connecticut Rules of Professional Conduct. Rule 3.1 prohibits lawyers from bringing or defending an action or asserting or controverting an issue unless there is a basis for doing so that is not frivolous. The comment to the rule states that an action or defense is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. It also is not frivolous if the attorney believes his client's position ultimately will not prevail. It is, however, frivolous if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the attorney is unable to make a good faith argument on the merits of the action. Attorneys who violate the code may be reprimanded, suspended, or disbarred.
CONNECTICUT REMEDIES WHEN JUDGES FAIL TO ACT
The law does not require judges to treat frivolous cases any differently than other cases. Thus, there are no statutory remedies that apply specifically to judges who fail to throw out a frivolous case. Parties unhappy with a judge's decision may file a complaint with the Judicial Review Council, which is required by law to investigate complaints against judges CGS § 51-51l).
The council may discipline the judge if the complaint alleges conduct for which a judge may be disciplined. By law, a judge may be disciplined for certain specified conduct, including (1) conduct prejudicial to the impartial and effective administration of justice which brings the judicial office in disrepute, (2) willfully violating the canons of judicial ethics, (3) willfully and persistently failing to perform his duty, or (4) neglectfully or incompetently performing his duties. After an investigation and a hearing, the council may, if it deems it warranted, publicly censure the judge, suspend him for a definite term up to one year, refer the matter to the state Supreme Court with a recommendation that the judge be suspended for more than one year or be removed from office, or exonerate the judge of all charges (CGS § 51-51i). The Court cannot be removed from office except on the concurrent opinion of the full court and cannot be suspended except on a vote by a majority of its members (CGS § 51-51j).
As stated above, judges may be disciplined for violating The Code of Judicial Conduct. Judges of the Superior Court adopted the code on October 1, 1974. Canon 3 of the code is pertinent for evaluations of judges' decisions. Canon 3 (a)(1) states that judges should be faithful to the law and maintain professional competence in it. Canon 3 (a)(5) states that judges should dispose promptly of the court's business. The commentary to this Canon 3 (a)(5), which provides judicial guidance, states that a judge must devote adequate time to judicial duties, be punctual in attending court and expeditious in determining matters under submission.